The Queen v Mason[1998] QCA 177

COURT OF APPEAL

FITZGERALD P

DAVIES JA

FRYBERG J

CA No 3 of 1998

THE QUEEN

v.

SYDNEY DERECK MASON Applicant

BRISBANE

DATE 24/02/98

JUDGMENT

THE PRESIDENT:  The applicant has applied for an extension of time within which to seek leave to appeal against sentences imposed upon him in the District Court at Bundaberg on 31 October 1997.

Shortly stated, the applicant, an 18-year-old Aborigine, has sworn that he was not advised by his legal representatives that there was any basis for considering his sentences manifestly excessive and that he was unaware until 22 December 1997 that there might be a basis for an application for leave to appeal against his sentences.  The application for an extension of time was filed on the following day.

While the explanation given for the delay is not particularly convincing, we have the material relevant to the argument that the sentences were manifestly excessive before us and we have heard oral argument making reference to that material.

Although he was only aged 17 when some of the relevant offences were committed, and 18 when the remainder were committed, the applicant, who is still 18, had a significant criminal history involving offences of dishonesty.

He was sentenced to 40 hours of community service in Rockhampton Children's Court for housebreaking and two offences of stealing in 1995.  About a year later he was sentenced in the Bundaberg Magistrates Court to six months imprisonment for unlawful use of a motor vehicle; nine months imprisonment with a recommendation that he be considered eligible for parole after four and a half months, for three offences of breaking, entering and stealing, and four months imprisonment for wilful and unlawful damage in the night.  All three sentences were ordered to be served concurrently.

A few months later he was again sentenced in the Bundaberg Magistrates Court to three months imprisonment for possession of implements, which was ordered to be served concurrently with the sentences earlier imposed in the Bundaberg Magistrates Court.

In about the middle of 1997 he was placed on probation for 12 months in the Bundaberg District Court for an offence of burglary, four offences of stealing and an offence of wilful and unlawful damage.

Prior to that time the applicant had committed the first of the offences for which he was sentenced in the District Court at Bundaberg on 31 October 1997, to which the present application relates.

In February of that year he broke into a home in Bundaberg and stole various household goods.  At that time he was on parole.  He was sentenced to imprisonment for four years for housebreaking and to imprisonment for 18 months for stealing, such sentences to be served concurrently with each other and with all other sentences which were imposed upon the applicant in the Bundaberg District Court on 31 October 1997 - that is, all other offences to which the present application relates.

Most of the remaining offences for which he was sentenced on that day occurred in a brief period between 27 August and 30 September 1997, while he was on probation.  Some of the offences occurred while he was also on bail.  He committed eight offences of burglary between 27 August and 21 September 1997 and was sentenced to imprisonment for three years on each.

He committed a further offence of burglary on 21 September 1997 for which he was sentenced to imprisonment for four years.  He unlawfully used a motor vehicle on 22 September 1997 for which he was sentenced to one month's imprisonment and he was sentenced to a further one months' imprisonment for an offence of wilful damage on 30 September 1997.

During the same period he committed a number of summary offences.  He was sentenced to two months imprisonment for unlicensed driving on 16 September 1997; three months imprisonment for possession of implements on 22 September 1997; one months' imprisonment for trespass on 22 September 1997 and one months' imprisonment for unlicensed driving on that same day.

As I have said, all the sentences imposed and to which the present application relates, were ordered to be served concurrently.

Much in the applicant's favour is that he was fully cooperative with the police after he was apprehended, pleaded guilty to an ex officio indictment and also pleaded guilty to the summary offences.  However, about nine and a half thousand dollars remains outstanding, with no prospects of compensation.

Shortly stated, the circumstances relating to the offences committed after 24 August 1997 are as follows:

Between that date and 22 September the applicant broke into nine dwelling houses in Bundaberg by forcing door knobs.  He stole property from four of the dwellings.  He was apprehended at about 9 a.m. on 21 September near the scene of one offence, after he had been disturbed by an occupant.  When questioned by police he cooperated, as I have said.  Indeed, he showed them the location of the premises where he had committed the other offences, while driving around the city of Bundaberg in a police vehicle.

However, on the same evening, 21 September, the applicant drove a vehicle without the owner's consent.  The owner had authorised another person to drive the car, but told that person who was friendly with the applicant, that the applicant was not to drive.  Before the sentencing Judge the prosecution accepted that this was a technical offence.

At about midnight that same night, the plaintiff was found in the front yard of a residence attempting to cut a piece of garden hose to use as a siphon to obtain petrol for his car.

The wilful and unlawful damage offence related to the applicant scratching his name on a perspex window in his watch-house cell.

As can be seen from the above statement of events, the applicant received an effective total sentence of four years imprisonment.  A recommendation was made that he be considered eligible for release on parole after he had served 19 months.

Although the sentence of imprisonment for four years is high, it is difficult to conclude that it was manifestly excessive, having regard to the decision of this Court in Brodie, CA369 of 1995 judgment delivered 15 November 1995.

A more difficult question is whether or not a recommendation for earlier eligibility for release on parole should have been made, having regard to the applicant's youth and his cooperation with the police and his pleas of guilty.

It has been pointed out that the sentencing Judge failed to comply with the requirements of subsection 13(3) of the Penalties and Sentences Act 1992 and that he did not state that the applicant's guilty pleas were taken into account in determining sentence.

However, it seems likely that they were taken into account because, for example, His Honour referred to the fact that there had been an ex officio indictment.

Other matters personal to the applicant, according to material before the Court, suggest that the applicant, at the time he committed most of the offences over a brief period was depressed following a break-up with his pregnant girlfriend and also that he was, and perhaps is, addicted to heroin. In my opinion the circumstances personal to the applicant, and his cooperation and early pleas in combination, demonstrate that this young offender should have been given the benefit of a recommendation for eligibility for consideration for parole at a significantly earlier time.

I consider that nine months, not 19 months, would have been appropriate and that the 19 months period to which the recommendation made by the sentencing Judge related, did not adequately reflect all the relevant factors.

Two circumstances however, should be emphasised: one is that if the applicant is released after serving nine months imprisonment he will continue to have a head sentence of four years hanging over his head, which hopefully will affect for the better his behaviour during the material period.

The second is that although he is only a young man this seems to me the last opportunity for leniency from any court.  If he continues to offend, then no doubt he will be punished much more severely on the next occasion. 

In the circumstances, I would grant the application for an extension of time and the application for leave to appeal against sentence, but the sentence below should stand, save that, in lieu of the recommendation that the applicant be considered eligible for release on parole after 19 months, a recommendation that he be considered eligible for release on parole after nine months should be substituted.

DAVIES JA:  I agree.

FRYBERG J:  I agree.  As I understand it, the orders which we are making are not intended to affect the operation of the parole laws in relation to any previous sentences imposed on the applicant.

THE PRESIDENT:  The order of the Court is application for an extension of time granted, application for leave to appeal against sentence granted. 

Sentence as imposed below affirmed, save that the recommendation made by the sentencing Judge, that the applicant be eligible for release on parole after he has served 19 months be set aside, and in lieu it be ordered that the applicant be considered eligible for release on parole after he has served nine months from the date when the sentence began, in accordance with the sentencing Judge's orders.  Those orders are satisfactory, Mr Butler?

MR BUTLER:  Yes, thank you, Your Honour.