New South Wales Court of Criminal Appeal CITATION : R v Mangan [1999] NSWCCA 194 FILE NUMBER(S) : CCA 60598/98 HEARING DATE(S) : 21 July 1999 JUDGMENT DATE : 21 July 1999 PARTIES : Regina Kenneth Mangan (Appellant) JUDGMENT OF : Studdert J at 1; Simpson J at 23 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/31/0668 LOWER COURT JUDICIAL OFFICER : Patten DCJ COUNSEL : P. Berman (Crown) P. Byrne SC (Appellant) SOLICITORS : S.E. O'Connor (Crown) Murphys Lawyers Inc (Appellant) CATCHWORDS : ACTS CITED : Crimes Act R v Readman (1990) 47 A Crim R 181 CASES CITED: R v Bloomfield (1998) 44 NSWLR 734 R v Henry & Ors [1999] NSWCCA 111 DECISION : See para 22 IN THE COURT OF CRIMINAL APPEAL 60598/98 STUDDERT J SIMPSON J Wednesday 21 July 1999 REGINA v KENNETH MANGAN JUDGMENT 1 STUDDERT J: The applicant Kenneth Joseph Mangan was convicted of armed robbery in company following his trial in the District Court. Judge Patten sentenced the applicant to a total sentence of ten years five months comprising a minimum term of seven years ten months and an additional term of two years seven months. The apparent explanation for the minimum term is that the applicant had spent a little under two months in custody before he was sentenced and the judge has given him credit for that time served, so that the effective minimum term was one of eight years. 2 The applicant seeks leave to appeal against the sentence imposed. 3 The offence was in a category for which s 97(1) of the Crimes Act imposes a maximum penalty of penal servitude for twenty years. 4 The facts as set out in the remarks on sentence are not in dispute. This crime was committed soon after 5.00 pm on Easter Monday, 17 April 1995. The applicant was one of two men who entered a garden centre at Ourimbah as it was in the course of closing. The men disguised themselves with white dust masks and the applicant was holding a gun. The two owners and staff were herded into a staff room and with the gun pointed at him the manager and joint owner was obliged to open the safe from which nearly $9000 was taken. At one point there was a delay in the opening of the safe and the co-offender urged the applicant to discharge the gun at the manager. Fortunately he did not do so and indeed the evidence does not disclose that this gun was loaded. 5 Nevertheless it was an extremely threatening and doubtless terrifying experience for those employees at the nursery who were in the room at the time. When the part owner gave evidence, he recounted what the applicant said to him as he pointed the gun at his stomach and ordered him to open the safe. The applicant used language towards the manager which was both aggressive and offensive, and this was the setting in which the co-offender urged the applicant to "Put one in, put one in him, put one in him, he's stalling". 6 The applicant was interviewed by police on 21 April 1995 when he denied any involvement in the robbery. He maintained that denial up to the time of trial and he pleaded not guilty at his trial to a charge under s 97(2) of the Crimes Act. However the trial judge directed an acquittal in relation to that aggravated offence and left a case for the jury's consideration under s 97(1). The jury found the applicant guilty under that sub-section. 7 The applicant was born on 4 December 1964 so that he was thirty years of age when he committed the subject offence. He is a married man with three young children, the eldest of whom is under ten years of age. He has a criminal history and in December 1983 was sentenced to five years imprisonment in the Supreme Court in Queensland for stealing with violence whilst armed with a dangerous weapon and in company. A five year sentence was then imposed but he was recommended for parole after nine months. Thereafter his record discloses a number of convictions at Local Court level for dishonesty, driving offences and drug matters. In June 1995 it is to be noted that he was sentenced in the Local Court at Wyong for offences including cultivation of a prohibited plant and possession of a firearm. There was a later conviction for possession of an unlicensed firearm in October 1995. 8 His Honour observed on the sparse material which was placed before him that apart from his criminal activities the applicant appeared to be a caring and loving husband and father with qualifications as a chef. His Honour observed: "His situation is a very sad one indeed. He has committed an extremely serious offence for which the only answer is a lengthy period of full time custody. The community in my view requires that offences such as this involving the presentation of a gun at innocent people going about their business in the course of their employment must be met by very heavy sentences in order to deter both this particular prisoner from a repetition of his conduct and other like-minded persons." 9 There can be no criticism of the remarks of the sentencing judge which I have just cited. The question is, however, whether the sentence imposed was manifestly excessive, as Mr Byrne of Senior Counsel who has appeared for the applicant has submitted. Mr Byrne referred to sentencing statistics provided by the Judicial Commission for offences under s 97(1). Those statistics indicate that analysis of over 1000 cases discloses full terms of ten years or more in only seven percent of cases. 10 The Court has been referred to a decision of Readman (1990) 47 A Crim R 181 in which Maxwell J concluded: "In the present case the gun the respondent used was loaded. As to this, this court has indicated in Dicker (unreported, CCA, 3 July 1980) that robberies can be viewed in escalating seriousness of carrying a firearm, of a firearm being loaded, of the loaded firearm being discharged, and of discharge being deliberately aimed at a victim or important target." 11 There is no finding in the present case that the weapon which the applicant was carrying was loaded and, drawing on Readman, Mr Byrne submitted that this was a significant factor in assessing the degree of gravity of the applicant's crime. 12 He submitted that it was to be expected, although the statistics provided did not reveal this, that those sentences at the top of the statistical scale were likely to have been offences where a loaded firearm was involved or a shot was fired or there were multiple robberies or the offence or offences were being committed whilst on bail or parole. 13 The Crown submitted that the dicta of Maxwell J in Readman should not be construed in such a way as to diminish the very serious nature of a robbery offence where an unloaded weapon is used. The fact that the weapon may not have been loaded means that the offence was not as serious as it may have been but it was still a very serious offence. I consider that submission to be correct. 14 The Crown pointed to the following features taking this offence away from the lower end of the range of criminality for an offence of this category: (i) that the victims were subjected to an armed robbery which was committed by two offenders; (ii) that the weapon was used to instil fear and to obtain what was in the safe. Whilst the weapon may have been unloaded, none of those in the staff room would have been aware of that and each could have perceived himself to have been in an extremely threatening situation; (iii) the fact that the applicant and his co-offender wore disguises and that the applicant used a weapon points to this offence having been planned. I would add that the timing of the offence at the end of the Easter weekend is a further indication that this matter was carefully planned; (iv) the robbery was performed in an atmosphere generated by the conduct of the applicant and his co-offender to terrify the manager and his fellow employees. 15 In my opinion the Crown is correct in identifying the above features as matters to be considered in weighing the gravity of this offence. 16 The Crown submitted that caution must be exercised in using sentencing statistics and referred to Bloomfield (1998) 44 NSWLR 734 as authority for that proposition. Further it was submitted that the guideline judgment in Henry [1999] NSWCCA 111 highlights the danger of placing too much emphasis on sentencing statistics. In his judgment in Henry the Chief Justice reviewed those statistics and at para 110 said: "These statistics strongly suggest both inconsistency in sentencing practice and systematic excess of leniency in the level of sentences. They justify the promulgation of a guideline judgment." 17 It was submitted by the Crown that Henry provided a more appropriate guide as to the proper range of sentences for the offence committed by the applicant than did sentencing statistics collated for a period prior to that decision. 18 In Henry it was determined that a total sentence of between four and five years was appropriate in a category of case where the following features appeared: "(i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken; (vii) plea of guilty, the significance of which is limited by a strong Crown case." 19 The guideline judgment in Henry stressed that the narrow range of four to five years was "a starting point" (see the judgment of the Chief Justice at 167) and that aggravating and mitigating factors would justify moving outside that range one way or the other. 20 The criminality of the applicant was plainly such as would have rendered a total sentence of four to five years inadequate as reference to the particular features of his case makes plain. The applicant's case is not in the category to which Henry was directed. However, it does seem to me that a total sentence of ten years five months was beyond the upper limit of an appropriate sentencing range. Having considered the competing submissions I am persuaded that the sentence in this case was manifestly excessive and this Court should interfere. 21 In my opinion an appropriate sentence would be one of eight years comprising a minimum term of six years and an additional term of two years. 22 The formal orders which I propose are therefore as follows: 1. That leave to appeal be granted; 2. that the appeal be allowed; 3. that the sentence be quashed and in lieu thereof the applicant be sentenced to a minimum term of six years penal servitude to commence on 31 October 1997 and to expire on 30 October 2003 and an additional term of two years commencing on 31 October 2003 and expiring on 30 October 2005. 4. I would specify 31 October 2003 as being the first date upon which the applicant is to be eligible for release on parole. 23 SIMPSON J: I agree with the orders proposed and the orders as stated. 24 STUDDERT J: The orders then will therefore be those orders as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.