REGINA v Mankaryous; REGINA v Mankaryous
[2011] NSWCCA 158
•20 July 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: REGINA v MANKARYOUS; REGINA v MANKARYOUS [2011] NSWCCA 158 Hearing dates: Tuesday 28 June 2011 Decision date: 20 July 2011 Before: Allsop P at [1]
Hidden J at [2]
Hall J at [3]Decision: The orders are:-
Michael Mankaryous:-
(1) Crown appeal upheld.
(2) The sentences imposed in respect of Counts 1 and 2 be quashed.
(3) In respect of Count 1, the respondent, Michael Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 2 years and 5 months to commence on 9 March 2009 and to expire on 8 August 2011 with a balance of term of 3 years and 7 months to expire on 8 March 2015.
(4) In respect of Count 2, the respondent, Michael Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 2 years and 5 months to commence on 9 March 2009 and to expire on 8 August 2011 with a balance of term of 3 years and 7 months to expire on 8 March 2015.
Medhat Mankaryous:-
(1) Crown appeal upheld.
(2) The sentences imposed in respect of Counts 1 and 2 be quashed.
(3) In respect of Count 1, the respondent Medhat Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 1 year and 5 months to commence on 8 February 2011 and to expire on 7 July 2012 with a balance of term of 3 years and 7 months to expire on 7 February 2016.
(4) In respect of Count 2, the respondent Medhat Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 1 year and 5 months to commence on 8 February 2011 and to expire on 7 July 2012 with a balance of term of 3 years and 7 months to expire on 7 February 2016.
Catchwords: CRIMINAL LAW - Crown appeal on sentence - whether sentences manifestly inadequate - whether trial judge's finding of offending "substantially below mid-range" in error - whether degree of departure from standard non-parole period in error - offenders to be releases shortly - whether deterrence and retribution give way to rehabilitation - appeal allowed Legislation Cited: Crimes Act 1900
Crimes (Appeal & Review) Act 2001
Crimes (Appeal & Review) Amendment Double Jeopardy Act 2009
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912Cases Cited: Dinsdale v R [2000] HCA 54
Duffy & Mangan v R [2009] NSWCCA 304
Licastro v R [2008] NSWCCA 131
Mulato v R [2006] NSWCCA 282
R v Cahayadi [2007] NSWCCA 1
R v Davies [2004] NSWCCA 319
R v Dodd (1991) 57 A Crim R 349
R v Dole & Nguyen [2010] NSWCCA 101
R v Edwards (1996) 90 A Crim R 510
R v Hamieh [2010] NSWCCA 189
R v Henry (1999) 46 NSWLR 346
R v JW [2010] NSWCCA 49
R v Knight & Biuvanua [2007] NSWCCA 283
R v Kyroglou [1999] NSWCCA 106
R v Maisey [2005 NSWCCA 347
R v McEvoy [2010] NSWCCA 110
R v PB [2008] NSWCCA 109
R v XX [2009] NSWCCA 115Category: Principal judgment Parties: Medhat MANKARYOUS v REGINA
Michael MANKARYOUS v REGINARepresentation: Crown: D Arnott SC
Respondents: A Francis
Crown: S Kavanagh
Respondents: S O'Connor
File Number(s): 2009/142600 2009/157764 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2011-02-10 00:00:00
- Before:
- Coorey DCJ
- File Number(s):
- 2009/142600
2009/157764
Judgment
ALLSOP, P: I agree with Hall J.
HIDDEN J: I agree with Hall J.
HALL J: The Crown appeals against the sentences imposed by the District Court upon the two respondents on 10 February 2011. The Notice of Appeal was filed by the Crown on 9 March 2011, within the prescribed time.
The Crown appeal is brought pursuant to the provisions of s.5D of the Criminal Appeal Act 1912 in respect of the claimed leniency of the sentences.
The respondents were jointly charged on the indictment. They are brothers and both pleaded guilty to the two offences in question, namely, an offence of robbery in company and, at the time of such robbery, wounding the victim (s.98 of the Crimes Act 1900) and an offence of robbery in company when armed with a dangerous weapon (s.97(2) of the Crimes Act ).
The guilty pleas came after the jury had been empanelled. Indeed, it was the third time the matter had been set down for trial. Twice before there had been aborted trials.
Particulars of the offences and prescribed maximum penalties are as follows:-
"Count 1: On 8 February 2009, robbery in company with wounding of Rachael Deering of her purse and mobile phone:
Section 98, Crimes Act 1900 - maximum penalty 25 years' imprisonment; prescribed statutory non-parole period: 7 years
Count 2: On 8 February 2008, robbery in company when armed with a dangerous weapon of Todd Hinton of his money, wallet and mobile phone:
Section 97(2), Crimes Act 1900 - maximum penalty 25 years' imprisonment; no prescribed statutory non-parole period."
On each count, the sentencing judge imposed entirely concurrent sentences:-
"Michael Mankaryous: Imprisonment for 4 years with a non-parole period of 2 years 5 months dating from 9 March 2009.
Medhat Mankaryous: Imprisonment for 4 years with a non-parole period of 1 year 5 months dating from 8 February 2011."
In the Notice of Appeal, the Crown relied upon a single ground, namely, that the sentence imposed in respect of both respondents was manifestly inadequate.
On 9 June 2011, in relation to the respondent Michael Mankaryous, the Crown filed Amended Grounds of Appeal in the following terms:-
"1. It was not open to his Honour to make a positive finding that there were no continuing injuries to Rachael Deering.
2. His Honour erred in his classification of Count 1 as being substantially below mid-range.
3. The degree of departure from the applicable standard non-parole period is so great that it manifests error.
4. His Honour erred in his approach to the respondent's criminal history.
5. It was not open to his Honour to find the respondent had 'turned over a new leaf' and was unlikely to re-offend.
6. His Honour failed to assess the seriousness of Count 2.
7. His Honour erred in making the sentences in respect of Counts 1 and 2 entirely concurrent.
8. His Honour was in error in finding special circumstances.
9. The sentences, both individually and when combined, were manifestly inadequate."
On the last-mentioned date, in relation to the respondent Medhat Mankaryous, the Crown also filed Amended Grounds of Appeal in the following terms:-
"1. It was not open to his Honour to make a positive finding that there were no continuing injuries to Rachael Deering.
2. His Honour erred in his classification of Count 1 as being substantially below mid-range.
3. The degree of departure from the applicable standard non-parole period is so great that it manifests error.
4. His Honour erred in firstly determining manifestly inadequate sentences in respect of Michael Mankaryous and then fixing sentences for Medhat Mankaryous as a proportion of them.
5. His Honour erred in reducing the statutory ratio specified in s.44 of the Crimes (Sentencing Procedure) Act 1999 without a finding of 'special circumstances'.
6. His Honour failed to assess the seriousness of Count 2.
7. His Honour erred in making the sentences in respect of Counts 1 and 2 entirely concurrent.
8. His Honour gave too much weight to subjective features.
9. The sentences, both individually and when combined, were manifestly inadequate."
At the hearing of the appeal on 28 June 2011, leave was granted to the Crown to amend the Notices of Appeal in the terms set out in the two preceding paragraphs.
On the sentencing hearing in the District Court, a Statement of Agreement Facts dated 16 November 2010 was tendered.
The Crown summarised the facts and circumstances referred to in the Statement of Agreed Facts on which the sentencing judge proceeded in its written submissions. I reproduce paragraphs 6 to 10 of the Crown's written submissions:-
"6. In his remarks on sentence the Judge did not recite the facts of the offences but incorporated by reference the agreed statement of facts which had been tendered in the sentencing proceedings. They can be briefly summarised. The respondents are brothers and shall be referred to by their first names without intending any disrespect. The victims and they knew each other [sic] . Rachael Deering had recently fallen out with Medhat's sister-in-law. Rachael Deering had two items of her clothes. Sometime after late January 2009 but before the offences, Medhat telephoned Rachael Deering threatening that if she did not return the clothes and hand over money 'we'll get it one way or the other'.
7. At about midday on Sunday 8 February 2009 the respondent went to the unit where both victims lived. Medhat was armed with a 'black pistol'. After knocking on the front door and as it started to open the door was kicked in and both respondents entered.
8. Michael pushed Todd Hinton to the ground. He received grazing to the back and side. Medhat put the pistol to his face.
9. Rachael Deering was punched to the face by Michael. As she fell to the ground she hit her head on a TV cabinet. Medhat then kicked her to the head. As a result she suffered a 4 cm gaping laceration to the left side of her head and multiple lacerations to her face. Her two upper front teeth were broken horizontally near the gum line.
10. A demand for the property was made. The respondents ultimately took clothing belonging to Medhat's sister-in-law, as well as items belonging to Ms Deering (a purse and a mobile telephone). They threatened to later shoot the victims if the police were called and stated they would be back to collect $5,000."
In relation to the respondent, Michael Mankaryous, the Crown set out the following matters:-
"11. Michael was aged 20 years 4 months at the time of the offences and 22 years 4 months at the time of sentencing (DOB 15 August 1988).
12. At the time of the offences he was on bonds imposed only a little over a month before for destroy or damage property and possessing prohibited drug. He had a record that commenced in the Children's Court in 2004, with an offence of demanding property in company with menaces with intent to steal. There was a conviction (2007) for assaulting a police officer in the execution of duty.
13. There was a pre-sentence report. He left school after completing Year 10 and thereafter held casual jobs with periods of unemployment. He was unemployed at the time of the offences. He had been in custody since his arrest on 9 March 2009 (a month after the offences) and during that time had fathered a child. The relationship with his partner broke down in December 2010 when he made offensive remarks to her in a telephone conversation. The respondent gave evidence in the sentencing proceedings during which he agreed in response to a question from his counsel that he planned to 'make amends and to resume your relationship with your de factor (sic) wife' (T 7.42 on 4.2.11).
14. The respondent has past drug and alcohol problems. He gave evidence that past drug and alcohol counselling had been of no benefit to him (T 9.16ff). The pre-sentence report noted that he had been generally non-compliant with reporting directions and failed to attend programs during the supervision of his past bonds. Despite this he gave evidence he wanted 'to do a drug and alcohol course', an anger management course and 'get my life on track' (T 10.12).
15. Apart from his criminal history referred to above the respondent had a number of offences against prison discipline since being taken into custody in March 2009. These included 2 offences of intimidation (May 2009 and October 2010), 1 offence of assault (May 2009) and 2 offences of disobeying a direction (January 2011 and February 2011)."
In relation to the respondent, Medhat Mankaryous, the Crown submissions set out the following factual matters:-
"16. Medhat was aged 26 years at the time of the offence and 28 years 4 months when sentenced (DOB 10 August 1982).
17. Relevantly he had a prior conviction for common assault but that was in 2001 for which he received a bond.
18. Medhat did not give evidence. There was a pre-sentence report. He was married with two children. He had been consistently employed as a plumber since leaving school and had been running his own business in partnership for a year prior to sentence. There were a number of testimonials stating that he had been a trustworthy and reliable worker as well as educational and trade certificates. There was a testimonial from his mother-in-law that the offences were out of character for him and one from the parish priest of the Coptic Orthodox Church describing both he and his brother as 'genuinely good people ... hijacked by deep anger'. There was a [sic] one sentence letter form Advantage Psychology dated 25 January 2011 confirming that the respondent had attended 'a session today' - a little over a week prior to sentencing and over a year since the offences."
Evidence was given from Dr Theocharous and by the parents of the respondents. The evidence established that the parents suffer from a variety of medical problems. The respondents' father had a series of medical conditions including diabetes, heart disease and gangrene to both feet. However, the point made by the Crown was that it was not suggested on behalf of either respondent that this unfortunate situation would make more difficult their time in custody.
Following the sentencing judge's reference to the parents' medical problems, his Honour went on to state:-
"These proceedings have been a real struggle for the parents and, of course, the parents have become innocent victims in this matter."
The Crown relied upon the proposition that it is only in the most exceptional case that a sentencing Court would mitigate sentence because of the impact of an offender's imprisonment upon family members: R v Edwards (1996) 90 A Crim R 510. The Crown's point was that, if this had been relied upon by the sentencing judge, then he was in error.
Intervention by this Court
By way of overview, I will briefly state, before turning to the specific grounds of appeal, the basis upon which I have concluded that this Court should intervene and the approach proposed in respect of the re-sentencing of the respondents.
A consideration of the facts and circumstances concerning the offence by each respondent under s.98 of the Crimes Act leads to the conclusion that the finding by the sentencing judge that the objective seriousness of the offence fell below the mid-range of seriousness for such an offence was an erroneous determination.
I have, accordingly, concluded that the sentences imposed upon each respondent in respect of the offences under s.97 and s.98 in terms of the head sentence for each offence must be set aside.
However, for reasons later set out, I have concluded that, whilst the sentences imposed in respect of the offences of each respondent produced non-parole periods which were inadequate having regard to the seriousness of those offences, this Court should not disturb those non-parole periods. The imposition of the higher head sentences which I propose will result in sentences that reflect the gravity of the respondents' offending and provide for extended parole periods.
Grounds of Appeal
(1) Michael Mankaryous
Summary of the Crown's contentions
On the hearing of the application, it was the Crown's submission that the sentences imposed in respect of both Counts 1 and 2 were manifestly inadequate. In this respect, the Crown contended that the sentencing judge, firstly, failed to make a proper assessment of the seriousness of the offence embodied in Count 1 and, secondly, that his Honour failed to consider at all the seriousness of the offence the subject of Count 2.
As indicated above, an offence under s.98 of the Crimes Act attracts a maximum penalty of 25 years' imprisonment and has a prescribed standard non-parole period of 7 years. In light of the guilty pleas entered by the respondents, the standard non-parole period operates as an important reference point or guide to the sentence to be imposed: R v Davies [2004] NSWCCA 319; Mulato v R [2006] NSWCCA 282.
The Amended Grounds of Appeal raised discrete issues. In effect, they constitute matters by way of complaint or criticism that are essentially directed to a contention that the sentences pronounced in respect of the two offences were manifestly inadequate. However, as they have been pleaded as separate grounds, I will seek to identify below the particular facts and matters that are subjacent to each of those grounds.
Ground 1: It was not open to his Honour to make a positive finding that there were no continuing injuries to Rachael Deering
The essential point raised in the Crown's submissions was that there was no evidence affirmatively establishing that there were no continuing effects from the injuries sustained by Ms Deering. It was said that the most that could be said on the evidence was that there was no evidence either way that the injuries were continuing.
In the circumstances in which there was no evidence that established ongoing sequelae from the injuries, I do not consider that this ground in itself carries any significance in relation to matters that are material to Grounds 2 and 3 which are discussed below.
In relation to Ground 1, Ms A Francis, of counsel who appeared in this Court on behalf of the respondents, submitted that the sensible interpretation in relation to the finding as to no continuing injuries was that his Honour was simply conveying the notion of a recovery by Ms Deering. The particular wounds and injuries sustained, in other words, were not of a kind that produced ongoing sequelae. So understood, the finding was open on the evidence.
The provisions of s.98 of the Crimes Act , Ms Francis observed, cover a very wide range of offending including very serious offending and that the permanence of injuries is a relevant circumstance where serious wounding or grievous bodily harm has been inflicted. The absence of permanent effects of injury, on the other hand, was a relevant factor in determining objective seriousness in terms of the notional mid-range offence and the application of the standard non-parole period.
Having regard to the nature of the injuries, and in the absence of any evidence establishing ongoing physical sequelae from the injuries, it was not erroneous, in my opinion, for the sentencing judge to proceed upon the basis that his Honour did.
Ground 2: His Honour erred in his classification of Count 1 as being substantially below mid-range
Ground 3: The degree of departure from the applicable standard non-parole period is so great that it manifests error.
The Crown argued Grounds 2 and 3 together as raising related issues.
Ground 2 requires consideration of a number of discrete matters said to constitute sentencing error in the determination of the objective seriousness of the offence in Count 1 and, in particular, in respect of the classification of the offence as being substantially below mid-range.
In relation to Ground 2, the Crown submitted that the sentencing judge had regard to specific matters that explain the approach taken by him in determining the degree of departure on the non-parole period imposed in respect of Count 1.
In this respect, reference was, firstly, made to a submission by counsel for the respondents (which it was suggested was accepted by the sentencing judge) concerning the issue of "provocation" , namely, that the offences "did not occur in a vacuum" , but that the offences occurred in circumstances where they had been "provoked" (Remarks on Sentence, 8.1) by two previous events.
The first of these events related to a disagreement that had arisen before the date of the offences between Medhat Mankaryous' sister-in-law and Rachael Deering. The second occurred four days prior to the offences when Rachael Deering's sister was said to have assaulted Medhat Mankaryous' sister-in-law.
The sentencing judge referred to counsel's submissions in the following terms (Remarks on Sentence at p.7 to 8):-
"... Ms McIntosh points out that these offences did not occur in a vacuum but they were provoked by two previous situations, namely, the acrimonious fallout between the sister-in-law of Medhat and the victim in the present case, the victim Rachael in the present case. And furthermore, the assault by the sister of the victim Rachael, in the sister-in-law of Medhat. That assault took place, Ms McIntosh emphasises, that that took place only four days prior to the incident, which was the subject of these charges."
It does appear that the sentencing judge, after reciting the submissions on a number of matters by Ms McIntosh of counsel who appeared on behalf of the respondent, Medhat Mankaryous, accepted the submission. Additionally, his Honour appears to have accepted a submission made on behalf of the respondents to the effect that there was "... one kick and one punch" . His Honour stated in this respect (Remarks on Sentence at p.9 to 10):-
"... Although my mind has fluctuated in this matter, I have decided, having regard to the fact that this was one blow, that is one kick and one punch, and having regard to the fact that the injuries are not continuing injuries and having regard to the background to this matter, that is the history of knowledge between the parties, I have classified this as being substantially below the mid-range of seriousness and it hardly needs to be said that these crimes are unusual in the sense that they were not committed for profit or from greed."
Earlier in the Remarks on Sentence, the sentencing judge accepted the submission made by Ms McIntosh that one could not be certain "... whether the injuries that were occasioned to the victim were occasioned by the blow or by the fall or by both ..." (Remarks on Sentence at p.8).
Aside from these two matters, the Crown also relied upon the fact that the sentencing judge made no reference in his Remarks on Sentence to the guideline judgment in R v Henry (1999) 46 NSWLR 346 or to the relevant principles as to general or specific deterrence. Further, it was contended that his Honour gave little or no attention to how he viewed the seriousness of Count 2.
On the point as to the offences not having occurred in a vacuum, the Crown accepted that, whilst motive is always a relevant factor affecting the moral culpability of the offender, in the present case, the purpose of the offence was to inflict injury upon Rachael Deering in her own home to teach her a lesson and to intimidate her.
This, the Crown argued, was not a case, for example, involving retribution for a victim who had sexually assaulted another close family member. It involved the belief that two items of clothing had been taken.
Reliance was also placed upon the observations of Howie J in R v Dole & Nguyen [2010] NSWCCA 101 at [6] to the following effect:-
"Provocation is, in my opinion, an inapt concept when dealing with vigilante conduct such as this."
The Crown's contention was that it is difficult to see how the actions of Ms Deering's sister could be regarded as having "provoked" the respondents to take revenge upon her. I accept that submission.
The Crown further submitted that motivation borne of family loyalty to redress some perceived wrong is of negligible mitigating value: R v Maisey [2005 NSWCCA 347 at [68]; Duffy & Mangan v R [2009] NSWCCA 304 at [25]. That proposition is, in my opinion, apposite in the present case.
In relation to the "one kick and one punch" point, the Crown observed that assaults involving a single blow and kick can cause greater injury than multiple blows. The injuries to the victim in this case were to the face and were said to be "nasty" as were the circumstances in which they occurred.
Whilst the Crown observed that the offence might have been more serious had the assault extended over a longer period and the injuries greater, nevertheless that did not make any less what occurred.
The Crown additionally relied, as a point of comparison with the more serious offence under s.98 of the Crimes Act (Count 1), upon the fact that the guideline judgment in Henry (supra) nominated a head sentence of between of between 4 and 5 years in relation to an offence under s.97(1) of the Crimes Act (armed robbery, without wounding: maximum penalty, 20 years) after a plea of guilty. The Henry guideline took into account a 10% discount for the plea.
Reference was made to the observations in R v PB [2008] NSWCCA 109 (a Crown appeal) in which Bell JA (as her Honour then was) (with whom Johnson and McCallum JJ agreed) stated:-
"24. His Honour appears to have overlooked the fact that this was an aggravated offence under s.98 which carries a higher maximum penalty than the maximum penalty for the guideline offence ...
24. ... The relevance of the Henry guideline to the sentencing of the respondent is that it states a range that is below the range that is appropriate for this offence."
In the present proceedings, the Crown contended that, for the purpose of analysis, the wounding of Rachael Deering was left out of account (it being the aggravating feature in s.98), and that, in any event, Count 1 was a significantly more serious offence than an offence which fell within the Henry guideline. In this respect, the Crown contended (Crown's written submissions at [34]:-
"... An attack by two males upon a woman in her own home and inflicting actual physical violence upon her, with one brandishing a pistol, is objectively more serious than a brief threat made to a shopkeeper by a single man armed with a weapon, the type of offence in Henry ."
On the question of planning, the Crown submitted that it appeared that the sentencing judge accepted a submission made by counsel for one of the respondents that there had been a small degree of planning. The Crown contended that the facts indicated a degree of planning that was more than "limited" .
The Crown also emphasised an on-going threat made by the respondents prior to their departure, namely, threatening to shoot the victims if they complained to the police. The Crown submission, accordingly, was in the following terms (at [36] and [37]):-
"36. The point is that if the present case was more serious than Henry , it points to a greater starting head sentence than the 4 or 5 years. And, as Howie J (with whom Simpson and Hislop JJ agreed) in R v Dean Henry [2007] NSWCCA 90 said (at [34]): 'it is axiomatic that a person charged with a s.98 offence should receive a heavier sentence than a similar offender charged with a s.97 offence'.
37. The aggravating feature of the s.98 offence over and above the Henry guideline considerations, involving the nasty injuries to Rachael Deering, occurred in her own home and in circumstances of degradation in front of the man with whom she lived. The objective seriousness of the offence was at least mid-range."
As to the standard non-parole period prescribed for a s.98 offence, the Crown argued that the guideline has, in relevant respects, been superseded by the standard non-parole period: R v JW [2010] NSWCCA 49 at [176]. The Crown's contention was that the sentencing judge gave no reasons for departing from the standard non-parole period which, as earlier noted, was 7 years.
The Crown submitted that the classification of the offence as one "substantially below mid-range" was wrong. Alternatively, it was argued that, even if the offence could be said to be "below" mid-range of objective seriousness, on no view of the circumstances of the offence under s.98 could it be said that it was so far below mid-range as to warrant a non-parole period being 35% of the standard non-parole period. That was said to result in a failure of "an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation" : R v Knight & Biuvanua [2007] NSWCCA 283 at [47].
On behalf of the respondents, Ms Francis, in her written submissions, acknowledged that joint enterprise principles exposed each offender to liability for the acts of the other.
The complaints made by the Crown with respect to the remarks on sentence were said to be better understood as involving infelicity rather than appellable error. So understood, it was submitted, the complaint is really one of manifest inadequacy.
The reference by the sentencing judge to the respondents having been "provoked" was a term that had been used in order to characterise the events that led up to the commission of the offences. It was contended that the sentencing judge was not using that word in the context of it being a mitigating factor in the terms of s.21A of the Crimes (Sentencing Procedure) Act .
The history of the background to the offences, it was submitted, was relevant. If that were not considered, then, it was observed, the crime would have had a particular perversity.
Ms Francis noted that the maximum penalty for an offence under s.98 is 25 years imprisonment. The maximum would apply to offending of the highest order. On that basis, the notional or putative mid-range offence, it was argued, was of "a very high order" : Respondents' written submissions at 2.9.
The provisions of s.98, it was emphasised, apply to offences such as well- planned and executed armed robberies in company that involve considerable planning and sophistication with considerable risk to public safety. The respondents' offences, it was submitted, were considerably less serious.
Seen in that light and having regard to the facts associated with the offences, it was contended for both respondents that the sentencing judge's evaluation that the s.98 offences were "substantially below mid-range" was open.
Ms Francis further submitted that the sentencing judge had not fallen into patent error.
Ground 4: His Honour erred in his approach to the respondent's criminal history
The Crown's contention was that the sentencing judge failed to take into account the fact that the respondent, Michael Mankaryous, was on conditional liberty at the time of the offences: s.21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999.
The Crown acknowledged that the sentencing judge referred (at Remarks on Sentence, p.10) to the fact that that respondent had been subject to three good behaviour bonds at the time of the offences but that that matter was mentioned in the context of determining the sentence in respect of respondent Medhat Mankaryous and for parity considerations but not when considering the circumstances of the criminality of the respondent, Michael Mankaryous. Accordingly, it was submitted, the sentencing judge had failed to take into account a relevant circumstance of aggravation.
The Crown further criticised the observation of the sentencing judge that the respondent Michael Mankaryous' antecedents "do not assist him" (Remarks on Sentence, 5.4). It was said that this was an understatement and that his record was indicative of a history of violence.
Further criticism was directed to the sentencing judge's observations concerning the same respondent's prison discipline offences as having been "three minor mishaps" and "only three minor misconduct charges" (Remarks on Sentence, 4.4).
It was said that the prison offences had a "particular sting" because they involved assault as well as offences of intimidation. The subject offences, it was observed, involved both the intimidation and the assault of Ms Deering.
The submission of the respondents was that breach of conditional liberty can have an elevating impact upon the appropriate sentence by reason of the issue of deterrence and related matters but is not to be regarded as objectively aggravating the seriousness of the offence.
In the present proceedings, the sentencing judge, having heard the evidence of the respondent, Michael Mankaryous, was persuaded that the breach of conditional liberty did not have a significant elevating impact upon penalty. It was submitted that this was not a case in which the sentencing judge simply overlooked the matter.
It was also observed that the sentencing judge stated (Remarks on Sentence, 5.5):-
"There is no doubt that his antecedents do not assist him ."
The Crown, however, pointed out that this was stated in a completely different context, namely, in the context of considering the sentence to be imposed in respect of the respondent, Medhat Mankaryous.
Ground 5: It was not open to his Honour to find the respondent had "turned over a new leaf" and was unlikely to re-offend
The Crown argued that these findings were based on two factors. The first was stated to be the fact that Michael Mankaryous had "undergone counselling and education in relation to drug and alcohol rehabilitation" (Remarks on Sentence, 3.9). The second arose from the respondent's statement in evidence "I want to get my life on track" (transcript, 10.12).
The Crown, in relation to the first matter, drew attention to the pre-sentence report (p.1), where it was noted that, whilst the respondent was being supervised during the period of the bonds, he, in fact, had failed to attend programmes. When asked in evidence whether counselling for drug and alcohol during the period of the bonds did him any good, the respondent replied in the negative (transcript, 9.5 and following).
The counselling, the Crown observed, came about to address the respondent's anger following misconduct offences in gaol and did not provide justification for a finding that he had turned over a new leaf and was willing to pursue rehabilitation.
Further, the pre-sentence report under the heading "Attitude to the Offences" recorded (p.3.1) referred to Michael Mankaryous' limited insight into his offending "however, he claimed that he is mainly sorry for the impact his behaviour has had on his partner and the children" .
As to the second matter - the respondent's statement as to wanting to get his life back on track - it was said that this had to be measured against his past record which was one of a consistent pattern of breaching bonds. It was again emphasised that the present offences were committed whilst he was on conditional liberty. The expectation of rehabilitation, accordingly, the Crown argued had not been realised and the mechanism designed for it had failed to achieve its purpose. In light of the respondent's breaches of prison discipline, it was contended that it was not open to the sentencing judge to find that Michael Mankaryous had turned over a new leaf and was unlikely to re-offend.
Ms Francis submitted that it was open to the judge to make the finding particularly as his Honour had the opportunity of assessing Michael Mankaryous' credibility.
It was argued that the decision in Licastro v R [2008] NSWCCA 131 was of no assistance having regard to the factual circumstances of the present case. The error in that case, it was noted, related to a finding as to good prospects of rehabilitation. The present case was to be distinguished both in terms of its facts and as a matter of principle. The assessment made, it was said, was based significantly upon the evaluation of the oral evidence given at the sentencing hearing and this Court was not in a position of making an assessment on the matter.
Ground 6: His Honour failed to assess the seriousness of Count 2
The Crown submitted that although there was no prescribed standard non-parole period for the offence the subject of Count 2, the sentencing judge was nonetheless required, under general principles of sentencing, required to access the extent of the criminality of the respondents in terms of both objective and subjective factors. This, the Crown contended, his Honour failed to do.
Ms Francis argued on behalf of the respondents that the sentencing judge was not required in the circumstances in which the remarks were given to express where in the scale of seriousness the offence lay.
It was said that salient aspects of the offence were carefully weighed in the balance. It was further submitted, in effect, that sentencing judges are not, where no standard non-parole period is prescribed, required to express a finding in terms of a scale of objective seriousness.
Ground 7: His Honour erred in making the sentences in respect of Counts 1 and 2 entirely concurrent
The Crown criticised the sentencing judge's finding "that this was one episode of crime and to accumulate the sentence would result in an excessive punishment" (Remarks on Sentence, 11.3).
The Crown referred to the principles that relate to the question of the accumulation of sentences: R v Cahayadi [2007] NSWCCA 1 at [27]; R v XX [2009] NSWCCA 115 at [52]. Those principles, the Crown argued, were not properly applied in the present case. The Crown submission was:-
"51 ... Mr Hinton was not simply assaulted by being pushed to the ground sustaining grazing by way of actual bodily harm. A pistol was trust in his face terrifying him. A proper exercise of discretion, as the Judge purported to exercise, would not have made the sentences completely concurrent. This did not recognise the harm to each victim. It was not enough that each was assaulted during the 'one episode of crime'. Nor would partial accumulation result in excessive overall punishment."
The Crown further argued that the reasons provided by the sentencing judge for concurrency of sentences did not constitute a proper basis for making the sentences wholly concurrent. It was argued that his Honour's approach constituted an error of principle.
Ms Francis submitted that the present case was one where, so far as both respondents were concerned, the criminality of the two offences was overlapping in terms of both the state of mind element in them at the time of the offending is concerned and the physical facts concerning the offences. The fact that there were two victims present during the commission of each offence was relevant to the penalty imposed in respect of each offence but did not require the accumulation of sentences for each offence.
It was contended that the fundamental question was whether the sentences reflected the total criminality and, when so considered, concurrency of sentences was open in this case.
Ground 8: His Honour was in error in finding special circumstances
Ground 9: The sentences, both individually and when combined, were manifestly inadequate
The Crown argued that the sentence imposed for the s.98 offence was unduly lenient for the reasons set out in its written submissions. In particular, the fact that it was committed in breach of conditional liberty and occurred against a background of a persistent criminal history of violence was not properly taken into account. The Crown also complained about the concurrency of the sentence imposed for the s.97 offence.
Applying the statutory ratio of 75% to the head sentence of 4 years and 6 months produced a non-parole period of 40.5 months or 3.37 years. The Crown argued that that fact indicated that an inadequate non-parole period had been set in this case.
The Crown, finally, contended that there was no basis for a finding of special circumstances.
(3) Grounds of appeal: Medhat Mankaryous
In respect of the respondent Medhat Mankaryous, the Crown noted the following findings were made:-
"(1) The same findings as in (a), (b) and (c) above.
(2) A 10% discount for the plea (Remarks on Sentence, 9.8).
(3) Excellent prospects of rehabilitation (Remarks on Sentence, 9.5) and 'far more persuasive' than his brother (Remarks on Sentence, 10.7).
(4) He would have a justifiable sense of grievance if he did not receive a substantially lesser sentence than Michael (Remarks on Sentence, 10.4)."
Grounds 1, 2 and 3
As indicated above, Grounds 1, 2 and 3 discussed above are relied upon respect of both respondents. Accordingly, I will proceed to deal with the remaining grounds, that is, Grounds 4 to 9.
Ground 4: His Honour erred in firstly determining manifestly inadequate sentences in respect of Michael Mankaryous and then fixing sentences for Medhat Mankaryous as a proportion of them
The Crown submission was that the sentencing judge adopted the following approach in sentencing the respondent, Medhat Mankaryous. Firstly, closely in line with the submissions of counsel for Michael Mankaryous (namely, that there should be a total sentence of 4 to 5 years with a non-parole period of 2 years (Remarks on Sentence, 5)), a sentence involving a non-parole period of 2 years and 5 months and a balance of term of 2 years and 1 month was imposed.
The sentencing judge's next step was said to be based upon a notion of parity or proportionality. On that basis, the sentencing judge stated that Medhat Mankaryous would have a "justifiable sense of grievance if he did not receive a substantially lesser sentence that" his brother Michael (Remarks on Sentence, 10).
The sentencing judge identified points of distinction relating to the respondents' criminal history as well as the fact that Michael Mankaryous was on conditional liberty at the time of the subject offences. Reference was also made to their respective rehabilitative progress and subjective cases. I shall return to this latter aspect on the question of re-sentencing.
The Crown's complaint also was that there were other factors relevant to the objective seriousness of the offences to which the sentencing judge did not refer. Medhat Mankaryous was older than his brother and, as the pre-sentence report noted, he took on the "patriarchal role" . Furthermore, it was he who was the one who brought the look-alike pistol to the premises.
The Crown contended, firstly, that, had the sentencing judge assessed the objective seriousness of Medhat Mankaryous' offending before considering what has been referred to in argument as the parity or proportionality issue, then his Honour may well have realised that the sentence being imposed, in particular, the non-parole period, was manifestly inadequate.
Ms Francis on behalf of Medhat Mankaryous characterised the asserted error as being an error of process. This was a reference to the fact that the sentencing judge first determined the appropriate sentence in respect of Michael Mankaryous and then determined the sentence for Medhat Mankaryous on a proportional basis to the sentences to be imposed on Michael Mankaryous.
It was said that the Crown's argument in this regard, in effect, involved the same complaint as had earlier been made in respect of Michael Mankaryous, that is to say, alleged error affecting the sentences imposed in respect of the latter's offending which was said to have effectively been perpetuated in the imposition of the lesser sentences imposed in respect of Medhat Mankaryous.
Ms Francis contested the proposition that the sentencing judge failed to conclude that the "patriarchal role" played by Medhat Mankaryous ought to have an elevating effect. There was no warrant for a determination based upon the fact that Medhat Mankaryous was several years older than his brother.
Additionally, reliance was placed upon the principles of joint enterprise and that, taking those principles into account, Medhat Mankaryous' involvement could not be said to be more objectively serious on account of the fact that he carried the pistol.
Accordingly, it was submitted there was no error in respect of the last-mentioned matters nor in the fixing of proportionate sentences.
Ground 5: His Honour erred in reducing the statutory ratio specified in s.44 of the Crimes (Sentencing Procedure) Act 1999 without a finding of "special circumstances"
The Crown's complaint was that the sentencing judge did not make any finding of "special circumstances" with respect to the sentences imposed upon the respondent, Medhat Mankaryous. Section 44 of the above Act requires a judge who finds special circumstances to make a record of the reasons for that decision and that those requirements were mandatory: R v Hamieh [2010] NSWCCA 189 at [72].
Accordingly, the Crown argued that, without a finding of special circumstances, the non-parole period would be 3 years and not, as imposed, a non-parole period of 1 year and 5 months.
Ms Francis argued that the sentencing judge made a proper finding of special circumstances which she contended had been conceded by the Crown at first instance.
The Crown did not, on the hearing of the appeal, contest that it had, in fact, adopted that position below. In any event, I am of the opinion that, having regard to the evidence, a sound basis exists for a finding of special circumstances in the case of Medhat Mankaryous.
Ground 6: His Honour failed to assess the seriousness of Count 2
Ground 7: His Honour erred in making the sentences in respect of Counts 1 and 2 entirely concurrent
The Crown repeated and relied upon the submissions made in respect of Michael Mankaryous in respect of these two grounds.
Ground 8: His Honour gave too much weight to subjective features
The Crown argued that the sentencing judge allowed attention to the respondents' subjective considerations "... to overshadow the objective seriousness of the offences and the strong need for general deterrence in cases such as these" : R v Dodd (1991) 57 A Crim R 349 at 354.
On behalf of the respondent, Ms Francis submitted that this was simply a submission or complaint as to manifest inadequacy.
Ground 9: The sentences, both individually and when combined, were manifestly inadequate
The Crown submitted that a sentence involving a non-parole period of 1 year, 5 months in respect of a home invasion, where the occupants were threatened by two men with a gun and where violence was used was very lenient indeed.
On behalf of the respondent, Ms Francis submitted that the sentencing judge in respect of both respondents had adopted starting points in excess of 4 years full time imprisonment.
The six month differential was said to be justified on account of subjective factors and the role that they played in fixing the head sentence.
It was clear that the sentencing judge was persuaded that the subjective factors did have a greater role to play in fixing the non-parole period concerning Medhat Mankaryous and that this was a proper exercise of discretion. The observations of Kirby J in Dinsdale v R [2000] HCA 54 at [68] were relied upon.
It was argued for both respondents that it was self-evident that the sentences imposed in respect of the s.97 offence conformed with the Henry guideline and that the Crown, in effect, was urging a conclusion of inadequacy and reliance on the s.98 offence. The sentences in respect of the latter, it was contended, took into account the fact of wounding of the victim, Ms Deering, and that the offences were committed in the victims' home.
It was further submitted that it was very relevant to have regard to the evidence which did not suggest that the force of the blow or the kick to Ms Deering itself were themselves of such a severity as to cause wounding or other injuries. This, in turn, was relevant to assessing the severity of the force used.
Again, reference was made by Ms Francis to the fact that s.98 offences may comprehend at the upper end of the range grievous bodily harm and that this was relevant to the assessment of objective seriousness of the s.98 offences in the present case. Again the force employed was said to be limited.
It was acknowledged that the fact that the offence was committed in the victims' home was a material factor, but it was said to have involved an intrusion by persons who were known to the victims in circumstances where the victims understood the motive. This, it was said, ameliorated significantly the aggravating feature of the intrusion.
Finally, so far as the finding of special circumstances was concerned, it was said that this was entirely appropriate in the case of Medhat Mankaryous, as he had a powerful subjective case. Additionally, when properly assessed, the wounding would not justify a sentence that was greater than one envisaged by the guideline.
Accordingly, the contention was that the sentences are not manifestly inadequate.
Consideration
Whilst the Remarks on Sentence reflect that particular attention was given by the sentencing judge to the matters that were raised and relied upon by counsel for the parties, the actual analysis and the consideration given to the assessment of the objective criminality of the offences the subject of Counts 1 and 2 was in fairly short form. The relevant parts of the Remarks on Sentence in this respect are to be found at pp.9-10. Although these are set out earlier in this judgment, for convenience of reference, I reproduce here the relevant remarks:-
"... Although my mind has fluctuated in this matter, I have decided, having regard to the fact that this was one blow, that is one kick and one punch, and having regard to the fact that the injuries are not continuing injuries and having regard to the background to this matter, that is the history of knowledge between the parties, I have classified this as being substantially below the mid-range of seriousness and it hardly needs to be said that these crimes are unusual in the sense that they were not committed for profit or from greed."
A little earlier, the sentencing judge referred to submissions made on behalf of both respondents in relation to subjective matters and indicated his acceptance of many of those submissions and that, in the case of Michael Mankaryous, he accepted the submission that a finding of special circumstances should be made.
His Honour also accepted (p.8) the submission made on behalf of Medhat Mankaryous that one could not be certain whether the injuries that were occasioned to the victim (a reference to Ms Deering) were occasioned by the blow or by the fall or by both.
His Honour also referred, as I have earlier indicated, to his acceptance of the proposition that there was no evidence of any continuing effect of the injuries to the victim.
In relation to the matters set out in the extract from the remarks in paragraph [119] above as having been taken into account in classifying the offence in Count 1 as below the mid-range of seriousness, I am of the opinion that that the Crown is correct in its contention that those matters themselves could not justify that classification. In particular:-
(1) As to the "one kick and one punch" issue, the remarks do not disclose that his Honour gave due regard to the matters established by the agreed facts, namely:-
(a) That Michael Mankaryous punched Ms Deering to the face, which had the effect of knocking her to the ground.
(b) That in consequence, she hit her head on a television cabinet on the way to the floor.
(c) That she was kicked in the head by Medhat Mankaryous while she was on the floor.
In addition to the above, so far as the victim Mr Hinton was concerned, there was no reference by the sentencing judge to the fact that he was assaulted by Michael Mankaryous upon the forced entry into the premises and was pushed to the ground.
In addition, there was no reference to the fact that the offenders threatened the victims that they would come back and shoot them if the police were called nor any reference to their statement that they would be back to collect $5,000.
Furthermore, there was no reference to the nature of the injuries suffered by Ms Deering, including the fact that she was (Agreed Facts at pp.2 to 3):-
"... terrified, bled profusely, was in considerable pain, and received the following injuries:
Head
A 4cm crescent-shaped, full thickness, gaping laceration to the left side of her head, above the forehead, just back from the hairline.
Face
1. A 1 cm, straight, oblique laceration involving the dermis above her left eye, close to the left eyebrow.
2. A 1.5 cm, straight, vertical laceration involving the full thickness of her left upper lip, extending to the edge of the vermilion border of the lip.
3. A 3 cm, straight, horizontal gaping laceration, 5 mm below the vermilion border of her lower lip in the centre of her chin. This laceration was almost full thickness, ie, Deep dermal.
4. Tenderness to palpation over the bridge of the nose and left maxillia .
Oral
1. Her two front upper teeth (left upper 1 and right upper 1) were broken horizontally near the gum line and splintered remnants of the stumps of the teeth were visible.
2. A 2 cm, straight, horizontal laceration on the inside of the bottom lip. This laceration was 1-2 mm deep.
These injuries were sutured and dressed in Nepean Hospital.
Mr HINTON received grazing to the back and side."
On a close examination of the facts concerning the assaults and their effects, I am of the opinion that to simply characterise them as "one kick and one punch" would obscure the significance of what was a brutal attack upon the female victim, the punch being sufficient to cause her to sustain the injuries referred to above and for the kick to the head whilst she was on the ground was a separate and further callous and brutal act.
In determining the objective seriousness of the offence, it is evident that the sentencing judge also proceeded upon an acceptance of the argument for the respondents as to "the background in this matter" .
Whilst there had been an association between the respondents and one or both of the victims and there had been a history of disputation, that does not, in my respectful opinion, constitute a "background" to the matter which would ameliorate the objective seriousness of the offences involved in Counts 1 and 2.
A full and proper assessment of the objective seriousness of the offences would, in my opinion, require weight to be attached to the following matters:-
(1) The respondents' forced entry into the victims' premises (described as a "home invasion" ).
(2) The use of a look-alike pistol which was obviously intended, and did, create fear and compliance by the victims.
(3) The physical assaults and the consequences of those assaults as described above.
(4) That there was clearly a degree of planning involved in the commission of the offences.
(5) The fact that the victims and the respondents were known to each other does not, in my assessment, offset the seriousness of what has been described as the vigilante actions.
(6) In the course of walking through the rooms of the victims' home a purse and a mobile phone belonging to Ms Deering were taken and money, a wallet and mobile phone belonging to Mr Hinton were taken.
(7) That the victims were then subjected to a threat by the offenders that they would come back and shoot both of them if the police were called.
(8) The statement by the respondents that they would be back to collect $5,000.
The Agreed Statement of Facts records the fact that, as a result of the respondents' actions, Ms Deering "... was terrified, bled profusely, was in considerable pain and received the following injuries ..." (set out above).
In addition, although it is clear the sentencing judge was fully aware of the fact that Michael Mankaryous was the subject of three good behaviour bonds at the time of the offences, his Honour did not appear to place any weight upon that fact in determining his culpability.
On the assessment of subjective factors, in my opinion, no criticism can be made of the sentencing judge's assessment of the subjective factors concerning Medhat Mankaryous. However, I have concluded that his Honour gave undue weight to the evidence given at the sentencing hearing by Michael Mankaryous in accepting that he had "turned over a new leaf" . In that respect, I consider that undue weight was given to the oral evidence of Michael Mankaryous at the sentencing hearing.
The Pre-sentence Report dated 27 January 2011 did not, in my assessment, record the proposition that Michael Mankaryous had, as it was put, turned over a new leaf. The relevant history is recorded in the report in the following terms (p.1):-
"Mr Mankaryous was the subject of supervision on an 18 month Section 9 Bond imposed on 12 March 2007; his response to supervision was deemed poor. On 30 October 2008, he was supervised on another Section 9 Bond which was later revoked and he was then the subject of two 12 month Section 12 Bonds imposed on 17 December 2008. Records indicated that during the supervision period he was generally non-compliant with reporting directions and failure to attend programs. It would appear that the current offences constitute a breach of the Section 12 Bonds."
In relation to the offending, the Pre-sentence Report noted that Mr Mankaryous admitted that he "took the law in my own hands" (p.2). It also records him saying "I was an idiot for doing this" and expressed regret for causing harm to the female victim, but as the author of the report observed, he was "... mainly sorry for the impact that his behaviour has had on his partner and the children" (p.3).
In relation to Michael Mankaryous' conduct in custody, the report records:-
" Performance in custody
Mr Mankaryous is reported to have been abusive and aggressive towards custodial staff on a number of occasions since his incarceration until 24 December 2010, when it was noted that he was polite to staff and other inmates following his transfer to another wing at Parklea CC. He has incurred three misconduct charges between 9 May 2009 and 7 October 2010. He is currently employed as a cleaner in his accommodation unit.
The offender has attended several psychological counselling sessions at Parklea CC to address his anger issues."
Mr Mankaryous conceded in cross-examination that the discipline offences arose out of an incident involving intimidation by him in May 2009 and an assault by him in May 2009 and another incident of intimidation by him in October 2010. These have been dealt with by way of "internal punishment" .
On the evidence, there have been no further adverse incidents since December 2010, that is some six weeks or so before the sentencing hearing in February 2011.
In relation to the question of concurrency and accumulation, although the sentencing judge did not separately analyse the objective seriousness of the offences, his Honour was clearly aware of the circumstances and matters constituting the offences as set out in the Agreed Statement of Facts. Although dealt with briefly, it is at least implicit in the Remarks on Sentence that his Honour considered that, rather than accumulating the sentences, the sentence to be imposed in respect of Count 1 would be determined with regard to the criminality that established the Count 2 offence.
There is a considerable overlap between the circumstances involving Counts 1 and 2, although there are added and distinguishing features between the two offences. Not the least of these was that it involved two different victims and the unlawful taking of the possessions of each one of them. In addition, as earlier stated, both were the subject of assaults.
The principles concerning concurrency and accumulation are well established: Cahayadi (supra) and XX (supra) at [52].
However, each case is to be assessed having regard to its particular facts and circumstances. Although there existed a basis for some accumulation, I have reached the conclusion that it was open, on the particular facts of this case, to the sentencing judge to determine a sentence in respect of Count 2 that would take into account the concurrent circumstances involving both victims. In other words, by reason of the close interrelationship between the facts to which I have referred, such an approach would, I believe, have achieved a sentence which would have regard to the criminality of both offences.
I have, however, concluded that the sentencing judge's particular determination that the offence in Count 1 was substantially below the mid-range of seriousness for such offences, when all circumstances are considered, manifests appellable error.
Ms Francis, in her supplementary written submissions dated 28 June 2011, addressed the residual discretion in this Court not to interfere with the sentences imposed even if appellable error was established. Reliance was placed upon the decision in this Court in R v Hernando [2002] NSWCCA 489 and JW (supra).
Particular reliance in this respect was placed upon what was described as an expectation in Michael Mankaryous of his release on parole on 8 August 2011 (approximately six weeks away) and the efforts that he has made towards rehabilitation in the hope that he would be released from custody at that time. Reliance was also placed upon the favourable observations made by the sentencing judge in respect of him as being "at the cross-roads" and that a degree of leniency would have a positive impact on his prospects for rehabilitation. It was submitted, for this Court to intervene and re-sentence the respondents would place the progress they had made at risk.
Re-sentencing
The respondent, Michael Mankaryous
I turn, firstly, to the question of the re-sentencing approach to be taken in respect of the respondent, Michael Mankaryous, sentencing error having been established in respect of the sentences imposed by the District Court.
In JW (supra), Spigelman CJ at [146] referred to the long line of authority which distinguishes, on a Crown appeal, between the discretion to intervene and the sentence to be imposed. As his Honour there stated "... That distinction remains after the enactment of s.68A ..." (a reference to s.68A of the Crimes (Appeal & Review) Act 2001 inserted by the "Crimes (Appeal & Review) Amendment Double Jeopardy Act 2009).
Accordingly, this Court retains the discretion in relation to its response to a Crown appeal by the words in s.5D of the Criminal Appeal Act .
The real question on the question of re-sentencing the respondents is whether a proper basis exists for the exercise of the residual discretion which, Ms Francis submitted, should be exercised in the disposition of the appeal. The submission was:-
"In respect of Michael Mankaryous, particular emphasis ought to be made of his looming expectation to be released to parole on 8 August of this year (six weeks away) and the efforts towards rehabilitation he has made in that hope."
It was further submitted that the sentencing judge had accepted that the respondent, Michael Mankaryous, was "at the crossroads" . The sentencing judge's acceptance of that proposition was said to be based on the following matters:-
(1) That he had spent two years in custody since the commission of the offences.
(2) That it was his first time in full-time custody.
(3) He had taken advantage of the rehabilitative schemes which it has offered.
It was further contended that "... As the primary Judge anticipated" , a degree of leniency in the case had had a positive impact on Michael Mankaryous' prospects. The submission in this respect was "... To intervene would place the progress of this respondent at risk" . Reliance was placed upon the evidence placed before this Court which was said to be to the effect that Michael Mankaryous' rehabilitation "... has continued to progress well since the sentences were imposed" .
The respondent, Michael Mankaryous, relies, in the event that this Court upholds the Crown appeal, upon the following affidavits as potentially relevant on re-sentencing:-
(1) Affidavit of Claire Wasley, solicitor, affirmed 27 June 2011 attaching an undated letter from Major Brian Wilson, Salvation Army Chaplain.
(2) Affidavit of Michael Mankaryous affirmed 28 June 2011.
(3) Affidavit of Michael Mankaryous sworn 24 June 2011.
The Crown relied upon an affidavit of Tamar Lopis, solicitor, affirmed 27 June 2011 attaching correspondence from the Manager, Offender Services & Programmes (Corrective Services) dated 27 June 2011.
I have considered all the objective circumstances of the offences to which I have earlier referred and have concluded that the offence in relation to Count 1 establishes that it was close to the mid-range of seriousness for an offence under s.98 of the Crimes Act .
In determining sentence, the fact that Michael Mankaryous was on conditional liberty at the time of the offences was a very material matter and his criminal history involving offences of violence were matters disentitling him to leniency.
However, although his custodial conduct has attracted disciplinary measures, the evidence does establish that there has been an improvement in his conduct in custody since mid-December 2010 and that he has been actively engaged in the number of courses of study and training to date. In particular, the evidence indicates that he has completed some sessions in the Getting Smart Programme and the respondent has stated that he has been actively engaged in that aspect of his rehabilitation from which he says he has received benefit and insight including, in particular, in relation to drug and alcohol issues.
Since being in custody, he has undertaken an education course and has completed Certificate 1 in Access to Work and Training and a National OH&S Construction Induction Training through TAFE. He has recently been undertaking a first aid course and a computer technology course.
The letter from the Manager, Offender Services & Programmes attached to the affidavit of Mr Lopis confirms the respondent's evidence in certain material respects. In particular, it confirms that he initially saw a psychologist on three occasions and that he is scheduled to start the CALM (Anger Management) Programme as at the date of the letter.
It also confirms that the respondent has been doing the Getting Smart (Alcohol and Other Drug) Programme and has completed four of the 12 sessions and that he should be able to complete the programme prior to release if he undertakes "catch up" sessions. The Manager, Offender & Services Programmes also confirmed the education and vocational training that he has undertaken.
Exercise of the residual discretion
The term of the non-parole period imposed on Michael Mankaryous by the sentencing judge will expire on 8 August 2011. It has been contended on the respondent's behalf that he has an expectation that he will be release to parole on 8 August 2011.
The residual discretion has been exercised in certain Crown appeals where there has been strong evidence as to the rehabilitation of the offender who has been released from custody or whose release is imminent. In R v Kyroglou [1999] NSWCCA 106 the offender had been sentenced in respect of a number of offences including an offence of armed robbery contrary to s.97(1) of the Crimes Act . Notwithstanding the conclusion of this Court in that case that the sentence imposed had been grossly inadequate, the Court dismissed the Crown appeal.
In Kyroglou (supra), the offender had been released from custody and he had been actively and successfully participating in drug counselling therapy. Newman J at [61] and [62], with whom Hulme (RS Hulme) and Simpson JJ agreed, stated:-
"61. If it were not for the extraordinary success of this respondent's rehabilitation, I would have been constrained to have imposed a sentence ... which would have resulted in the respondent being returned to custody. Such is the success of the rehabilitation programme being carried out by the respondent that I am of the view that it should exercise its discretion and not interfere with the sentence passed.
62. I stress that I have come to this view because of the extraordinary success of the respondent's rehabilitation programme and I make it plain that the favourable exercise of discretion to this respondent is exceptional in nature ..."
In R v McEvoy [2010] NSWCCA 110 (a case determined subsequent to the judgment in JW (supra)), the respondent, 25 years of age, had been sentenced in respect of a number of offences including supply of prohibited drug (ecstasy), possess prohibited weapon without permit and malicious wounding with intent to cause grievous bodily harm.
The judgment, delivered on 21 May 2010, noted that the non-parole period that had been imposed was due to expire on 28 February 2011. The offender had been sentenced to a total term of imprisonment of 4 years with a non-parole period of 2 years and 9 months. The Crown appealed pursuant to s.5D of the Criminal Appeal Act .
Reference was made in that case by Simpson J to the evidence on re-sentence which included "uniformly glowing reports" from different officers at the Long Bay Correctional Centre. The respondent was described by one as "an asset" on the day-to-day running of the area in which he worked and that he had "... the right attitude and commitment" . The officer added "one cannot fault his work ethics, application or behaviour" .
The conclusion was that the material was "quite exceptional" and that the reports from the Corrective Services authorities indicated that "the process of rehabilitation is well underway" (at [114]). Simpson J concluded that this Court should not, at that stage, interfere with that process being carried to its conclusion.
In respect of the evidence in relation to Michael Mankaryous, I accept that the evidence does establish that, to date, he has made progress towards rehabilitation but the evidence does not, as in the cases to which I have referred, establish such exceptional progress as to warrant this Court deciding not to intervene.
However, the evidence which establishes that he has made progress may still be relevant in the exercise of the power to re-sentence. I have concluded that the appropriate exercise of the discretion in relation to each respondent is that, although this Court should intervene, it should not impose sentences in the terms that ought to have been imposed by the District Court. The re-sentencing should be undertaken on the basis of the respondent being sentenced to a longer head sentence only, namely, a period of 6 years, but the orders of this Court should not alter the non-parole period imposed on the respondent.
If this Court were to now impose on re-sentencing a sentence as ought to have been imposed in the Court below, it would, in my assessment of the evidence, create a real risk of a regression in the respondent, Michael Mankaryous' rehabilitation, particularly having regard to the not unreasonable expectation held by him of his possible or likely release to parole in the near future (August 2011).
The purposes of sentencing are clearly stated in s.3A of the Crimes (Sentencing Procedure) Act . These include the purpose therein stated:-
"(d) to promote the rehabilitation of the offender."
I have concluded, as Simpson J did in Kyroglou (supra) that the sentencing principles concerning denunciation, deterrence and retribution should in this case and at this stage give way to the respondent's rehabilitation, especially in light of the evidence of progress made by him in that regard.
I consider that a finding of special circumstances should be made in relation to Michael Mankaryous in order to ensure that the respondent will have an extended period of supervision whilst on parole. I, accordingly, make a finding to that effect.
I consider that, for reasons earlier discussed, the sentences in respect of Counts 1 and 2 should be concurrent and I have borne that in mind when determining the sentence to be imposed with respect to Count 1. I, accordingly, propose the following orders:-
(1) Crown appeal upheld.
(2) The sentences imposed in respect of Counts 1 and 2 be quashed.
(3) In respect of Count 1, the respondent, Michael Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 2 years and 5 months to commence on 9 March 2009 and to expire on 8 August 2011 with a balance of term of 3 years and 7 months to expire on 8 March 2015.
(4) In respect of Count 2, the respondent, Michael Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 2 years and 5 months to commence on 9 March 2009 and to expire on 8 August 2011 with a balance of term of 3 years and 7 months to expire on 8 March 2015.
(2) The respondent, Medhat Mankaryous
In respect of the respondent, Medhat Mankaryous, the following affidavits are relied upon on re-sentence:-
(1) Affidavit of Medhat Mankaryous sworn 24 June 2011.
(2) Affidavit of Gorana Mankaryous, the wife of the respondent, affirmed on 24 June 2011.
(3) Affidavit of Claire Wasley, solicitor, affirmed 27 June 2011attaching a copy of a Review of Classification dated 25 March 2011.
The Crown relied upon the affidavit Tamar Lopis, solicitor, affirmed 27 June 2011 attaching correspondence from the Manager, Offender Services & Programmes (Corrective Services) at Bathurst Correctional Centre dated 27 June 2011.
I have concluded that the Crown appeal should be upheld, but that, for reasons stated below, the Court should exercise its residual discretion to the extent of imposing a higher head sentence than that imposed by the sentencing judge below, but that this Court should not intervene to vary the non-parole period of 1 year and 5 months imposed by the District Court.
The evidence establishes, as the sentencing judge observed, that the respondent had "a minimal criminal record" . Furthermore, the pre-sentence report dated 2 February 2011 tendered before the sentencing judge established a number of factors that were favourable to him. He had been in continuing employment at the time of the offences. He has acknowledged the seriousness of his actions, behaviour and attitude in relation to the offences. He was noted as open and forthcoming during the preparation of the pre-sentence report. It was there recorded:-
"He presented as a man who appears to have no history of mental health issues or drug or alcohol dependency and has been afforded the benefit of a stable and supportive environment and continues to retain a close family unit.
It appears Mr Mankaryous' need to maintain the patriarchal role to the best of his abilities may have inadvertently impaired is judgment and contributed to his offending behaviour. To his credit, the offender appears to have gained some insight into his behaviour and attitude and is in the process of addressing these issues."
The sentencing judge noted that a number of testimonials had been tendered which he described as "extremely impressive" , a description which I accept.
Medhat Mankaryous' affidavit sworn 24 June 2011 confirms that he has had no conduct charges whilst he has been in custody. He presently holds a Higher School Certificate and TAFE requirements to be a qualified plumber. He has enrolled in an Anger Management Course and he has also completed courses whilst in custody.
It is evident that the objective and subjective factors indicate that lesser non-parole periods should be imposed on the respondent Medhat Mankaryous in respect of Counts 1 and 2 than those to be imposed on his brother.
I have concluded that, by reason of the substantial progress that Medhat Mankaryous has been making whilst in custody, the residual discretion in the Court should be exercised so that, effectively, the non-parole period imposed on him by the District Court will remain. Accordingly, the orders I propose below, as in the case of Michael Mankaryous, will have the effect only of increasing the head sentence to a period of 6 years. Any other approach, in my opinion, would place his rehabilitation at risk, a consequence in the circumstances of this case that must be avoided.
By reason of the respondent's good prospects of rehabilitation, a finding of special circumstances should be made and I, accordingly, make a finding to that effect.
I accordingly propose the following orders in respect of the respondent, Medhat Mankaryous:-
(1) Crown appeal upheld.
(2) The sentences imposed in respect of Counts 1 and 2 be quashed.
(3) In respect of Count 1, the respondent Medhat Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 1 year and 5 months to commence on 8 February 2011 and to expire on 7 July 2012 with a balance of term of 3 years and 7 months to expire on 7 February 2016.
(4) In respect of Count 2, the respondent Medhat Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 1 year and 5 months to commence on 8 February 2011 and to expire on 7 July 2012 with a balance of term of 3 years and 7 months to expire on 7 February 2016.
Orders
Accordingly, the orders I propose are:-
(1) Michael Mankaryous
(1) Crown appeal upheld.
(2) The sentences imposed in respect of Counts 1 and 2 be quashed.
(3) In respect of Count 1, the respondent, Michael Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 2 years and 5 months to commence on 9 March 2009 and to expire on 8 August 2011 with a balance of term of 3 years and 7 months to expire on 8 March 2015.
(4) In respect of Count 2, the respondent, Michael Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 2 years and 5 months to commence on 9 March 2009 and to expire on 8 August 2011 with a balance of term of 3 years and 7 months to expire on 8 March 2015.
(2) Medhat Mankaryous
(1) Crown appeal upheld.
(2) The sentences imposed in respect of Counts 1 and 2 be quashed.
(3) In respect of Count 1, the respondent Medhat Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 1 year and 5 months to commence on 8 February 2011 and to expire on 7 July 2012 with a balance of term of 3 years and 7 months to expire on 7 February 2016.
(4) In respect of Count 2, the respondent Medhat Mankaryous be sentenced to a term of imprisonment involving a non-parole period of 1 year and 5 months to commence on 8 February 2011 and to expire on 7 July 2012 with a balance of term of 3 years and 7 months to expire on 7 February 2016.
Decision last updated: 21 July 2011
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