New South Wales Court of Criminal Appeal CITATION: Regina v Mansour (No 1) [2005] NSWCCA 173 HEARING DATE(S): 2 May 2005 JUDGMENT DATE: 2 May 2005 JUDGMENT OF: Grove J at 1; Hulme J at 41; Simpson J at 42 DECISION: APPEAL ALLOWED IN PART; APPELLANT RESENTENCED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - FAILURE TO IMPLEMENT FINDING AS TO ALLOWANCE FOR PLEA OF GUILTY - CONCESSION THAT THIS SHOULD BE CORRECTED BY ADJUSTMENT OF TERMS - OTHER GROUNDS UNSUSTAINED - NO PARTICULAR POINT OF PRINCIPLE CASES CITED: R v Ponfield 1999 48 NSWLR 327 PARTIES: Regina v Fade Mansour (No 1) FILE NUMBER(S): CCA 2004/1671 J. Bennett SC (Crown) COUNSEL: G. Walsh (Applicant) S. Kavanagh (DPP) SOLICITORS: C. Hunter (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/0405 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ IN THE COURT OF CRIMINAL APPEAL 2004/1671 GROVE J HULME J SIMPSON J 2 May 2005 REGINA v FADE MANSOUR (No 1) Judgment 1 GROVE J: Today the court has heard two appeals and it will be necessary to deliver two judgments. The Court is in a position to do so now. We will call this judgment Regina v Mansour No 1. 2 This is an application for leave to appeal against the severity of sentence imposed by Blackmore DCJ at Parramatta District Court. The applicant pleaded guilty to two counts of assaulting police with intent to avoid lawful apprehension and had been committed for sentence on two further charges, namely breaking, entering and stealing and possessing housebreaking implements. All of these offences arose out of events on 16 October 2002. 3 On the afternoon of that date the applicant was seen to walk near a suburban house carrying a crowbar or jemmy. Police were contacted and the initial response was by a Sergeant Clarke and Constable Cuddy. These police positioned themselves near the house. Later inspection showed that entry to it had been forced and some of the rooms within the house ransacked. 4 The police officers observed the applicant emerge from the house holding a bag and the metal bar. He was arrested after the use of a capsicum spray and, ultimately, the production of a firearm by Sergeant Clarke. 5 After arrest, and at the police station, the applicant was found to be carrying a large number of items of jewellery and the like, together with amounts of cash. These constituted the element of stealing on the first charge committed for sentence. 6 As will later appear, a ground relates to the facts found by the learned sentencing judge and for that reason I have merely sketched the above description of the events leading to the charges. 7 The applicant has been in continuous custody since his arrest on 16 October 2002. Blackmore DCJ imposed sentences for the offences which are the subject of this application on 30 May 2003. It can be noted that another appeal by the applicant is before the Court seeking leave to appeal against severity of sentence imposed by Delaney DCJ on 30 March 2004. The offences for which Delaney DCJ imposed sentences were committed in May and July 2002 and therefore antedated the matters previously dealt with by Blackmore DCJ. Delaney DCJ also dealt with the applicant in respect of his being called up for breach of a recognizance which had been entered on 24 March 1999. 8 Having noted this curial history, I turn to the current appeal. On each of the counts for assaulting police with intent to avoid lawful apprehension the applicant was sentenced to imprisonment for two years commencing on 16 October 2002 with a non parole period of eighteen months which expired on 15 April 2004. The sentences were, of course, to be served concurrently. On the matters committed for sentence, the applicant was sentenced for breaking, entering and stealing to imprisonment for four years commencing from 16 October 2003 with a non parole period of two years expiring on 15 October 2005 and for the offence of possession of housebreaking implements, to a fixed term of imprisonment of twelve months commencing on 16 October 2003 which expired on 15 October 2004. 9 The applicant was born on 17 August 1975. He is a qualified electrician (although erroneously described in some documentation as a tiler). As at the date of relevant sentence he had been addicted to heroin for a period of about ten to twelve years. With considerable family support, which remains available to him, he has made several attempts to overcome his addiction including by undergoing Naltraxone implant. For this purpose at one point he travelled to Israel and his father paid a considerable sum for the treatment. The applicant has formed a relationship with a Ms Ilic, who is a highly qualified and educated young woman who in fact served some two years as a police officer, but retired because of a back condition. She continues to support him and she gave evidence in the sentencing proceedings as did the applicant and one of his brothers. 10 It is the fact, however, that the applicant has been the recipient of considerable leniency in the past. I do not need to recite his antecedent record in full but when the applicant committed the offences presently under consideration he was subject to the terms of the recognizance entered into on 24 March 1999 at Sydney District Court; a bond to be of good behaviour entered at Brewarrina Local Court on 19 June 2001 and a suspended sentence imposed at that court on the same day; a good behaviour bond entered at Bankstown Local Court on 8 February 2002 and a suspended sentence imposed at the same court on 2 August 2002. 11 The applicant's overall record was such as to disentitle him to leniency by reason of prior good behaviour and the circumstance that the offences were committed whilst multiple recognizances were in effect is a matter of aggravation. 12 Ground 1 asserts that the aggregate sentence was too severe in the light of the applicant's family support and his prospects of rehabilitation. Whilst I have observed repeated attempts have been made at rehabilitation, the repeated failures would scarcely engender confidence for the future. It is true that the applicant apparently continues to enjoy family support and his family consists of persons of good repute. In evidence he accepted the description of himself as the "black sheep". 13 One of the offences was for breaking, entering and stealing which was the subject under reference in R v Ponfield 1999 48 NSWLR 327 and there were applicable two particular matters of aggravation, namely that the applicant at the time of offence was on conditional liberty and that he had a prior record for like offences. In making the latter observation I do not qualify my already expressed observation that the existence of prior record is a matter taken into account by denial of lenience. I would reject this ground. 14 The second ground asserts that the sentences imposed for the offences of assault and break enter and steal should have been ordered to have been served concurrently. A written submission acknowledged that a separate sentence may have been appropriate for the offences concerning the police officers but "given the fact that it was the break, enter and steal offence that was the sole objective of his criminality and that the assault was a quite unpremeditated reaction at the end of that failed venture" the sentences should be served concurrently. 15 That statement reveals an appropriate basis for the distinction drawn by the learned sentencing judge. The offence of breaking, entering and stealing for which the housebreaking implements were used had been completed and it was in order to escape apprehension from those already committed crimes that the offences against the police officers were undertaken. 16 There were involved two clearly separated manifestations of criminal conduct and no error is demonstrated by his Honour's conclusion that he should so treat them. 17 The next ground refers to a discount for the pleas of guilty. As I am of a view that some intervention in this regard must be undertaken, I shall return to this ground. 18 The fourth ground asserts that his Honour placed undue weight upon the suspended sentence entered by the applicant at Bankstown Local Court on 22 August 2002 as a circumstance of aggravation. It is pointed out that the applicant came before Bankstown Local Court after a delay of about two years for the particular offence which might have been dealt with earlier at Brewarrina. 19 The thrust of the submission is that the offence was stale but this is to ignore the reason that it is a matter of aggravation to commit an offence whilst on conditional liberty. It is that very fact, namely that liberty was conditional, which gives rise to aggravation when offence is committed while such is current and it does not, as the submission implies "relate back" to whatever offence it was that was dealt with by way of good behaviour bond or suspended sentence. 20 The fifth ground asserts that his Honour gave insufficient weight to the applicant's responses to supervised release when he found that by reason of special circumstances he would depart from the formula for division between head sentence and non parole period. I will address this matter when dealing with the third ground. 21 The sixth ground asserts that his Honour was led into error and erred by relying upon a Facts Sheet in circumstances where what was in the sheet was contradictory of the content of the statements of Sergeant Clarke and Senior Constable Cuddy, the victims of the assaults charged in the indictment. 22 It is to be observed that the Facts Sheet and the two statements were tendered by the Crown in the sentencing proceedings by consent. In a somewhat lengthy submission it appears that the gravamen of the complaint raised under this ground is that the Facts Sheet included the statement "the offender continued to resist and struggled with Senior Constable Cuddy on the ground" whereas that description does not appear in terms in the statements. In making his findings the sentencing judge obviously drew upon the Facts Sheet to a very large extent. 23 I am unable to see any substance in this assertion. The description by Senior Constable Cuddy includes the applicant trying to pass him "however, I grabbed hold of him in a tackle style motion, spun him around and kept a firm grip on his lower limbs". Sergeant Clarke described the applicant's being forced to lose his balance by Senior Constable Cuddy who "fell to the ground and he managed to grab him, they both fell toward the fence". The applicant was attempting to escape from the police and I see nothing inconsistent between the epitomized description in the Facts Sheet and what appears in the statements. 24 In any event, as I have indicated, the Facts Sheet was before the sentencing judge without objection and the distinction being sought to be drawn under this ground is, in my view, semantic and, as I have said, is far from demonstrative of contradiction. 25 Ground 7 asserts that his Honour erred in finding that he "must" accumulate the sentences imposed in relation to each of the offences of assault police with intent to resist arrest. 26 In fact his Honour did not accumulate the sentences in respect of the two offences of assault police with intent to resist arrest and they were directed to be served concurrently. As I have already indicated both sentences were to date from 16 October 2002 and expire on 15 October 2004 with a non parole period expiring on 15 April 2004. Accumulation in fact was ordered in that the sentences on the charges in the committal documents were ordered to commence after the service of one year of the sentences for the assault police matters. I have already dealt with the accumulation in relation to ground 2. 27 It is true that the word "must" appeared in his Honour's remarks on sentence but the context was that he was adverting to his proposed discount for the pleas of guilty of 25 percent, observing the sentence which he would otherwise have assessed and in relation to it said: "That would necessarily also have had regard to the accumulation of sentence that must be imposed in relation to the assault police case". 28 I would interpret his Honour's use of the word as simply reference to the determination which he had reached and he was saying no more than that, had he not been discounting the sentence otherwise assessed, he would have had to take into account in his assessment the accumulation which he proposed. His Honour was essentially indicating that he was conscious of the need to continue to have regard to the principles of totality. 29 Ground 8 asserts that the sentences imposed in relation to each of the offences of assault police with intent to resist arrest were manifestly excessive. 30 The facts show that the applicant threatened police with the metal bar. Subsequently he told a police officer (not one of the victims) that he intended to scare the police but other than that intended to do nothing. This was an intention of which the victims could not have been aware whilst they were being threatened. There was evidence in the statements tendered that Senior Constable Cuddy was, understandably, in considerable fear and he suffered some injuries. 31 I see no error in his Honour's determination of sentence. I return however to those matters which are indicated I would defer. As I have mentioned, his Honour indicated that as against an assessed sentence of six years and three months he intended to apply a discount of 25 percent to acknowledge the applicant's very early pleas of guilty. 32 The overall effective sentence, recognizing the accumulation, is imprisonment for five years with a non parole period of three years. The head sentence of five years does not represent a "discount" of 25 percent from an assessment of six years and three months imprisonment. In a written submission it was said: "The Crown concedes that error has been occasioned by virtue of the fact that his Honour failed to correctly calculate the discount of 25 percent he granted on the original head sentence he stipulated was appropriate, namely six years and three months". 33 It is further stated in that submission that this is a matter which this Court should correct. I agree. The applicant's appeal is considerably out of time having regard to what has just been said, extension of time should be granted in order to enable appropriate correction to be made. 34 Because of the delay in bringing the appeal, the sentences for assaulting police with intent to avoid apprehension and for possessing housebreaking implements are expired. 35 Subject to the second matters dealt with by Delaney DCJ which I earlier mentioned, the current sentence is imprisonment for four years dating from 16 October 2003 with a non parole period of two years expiring on 15 October 2005. 36 Had his Honour applied a discount of 25 percent to an overall term of six years and three months he would have calculated a head sentence of a little over four years and eight months. Of course by reason of accumulation the current sentence did not commence until 12 months after the commencement of the sentences for assaulting police. 37 Different methods of calculation could be applied but a liberal approach would be to reduce the head sentence for breaking, entering and stealing by the full four months difference between the effective five year overall sentence and the computed four years and eight months. 38 I would adopt his Honour's finding that there were special circumstances which he reflected in the setting of the non parole period for the offence of breaking, entering and stealing of one half of the head sentence. 39 The consequence is to reduce the head sentence for that offence to three years and eight months and the non parole period to twenty two months. 40 I therefore propose the following orders: (1) Extension of time for lodging of appeal granted. (2) Leave to appeal against sentence granted and appeal allowed in part. (3) The sentence imposed on count 1 of the committal for sentence, that is to say the offence of breaking, entering and stealing committed on 16 October 2002, imposed in the District Court is quashed and in lieu thereof the applicant sentenced to imprisonment to three years and eight months dating from 16 October 2003 and to a non parole period of one year and ten months, commencing on 16 October 2003 and expiring on 15 August 2005. (4) The earliest date of release to parole in respect of this sentence specified as 15 August 2005. 41 HULME J: I agree. 42 SIMPSON J: I also agree. 43 GROVE J: Those will be the orders of the Court in the first appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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