R v Mason[2000] QCA 179

COURT OF APPEAL

de JERSEY CJ

McMURDO P

DUTNEY J

CA No 420 of 1999

THE QUEEN

v.

CHRISTOPHER LLEWELLYN ANTHONY MASONApplicant

ROCKHAMPTON

DATE 16/05/2000

JUDGMENT

THE CHIEF JUSTICE:  The applicant, when aged between 21 and 23 years, committed a large raft of offences of dishonesty:  stealing and receiving; breaking, entering and stealing; attempted breaking in; unlawful use of a motor vehicle and a series of summary offences. 

Of the indictable offences, there were three of burglary, three of house breaking, six of stealing, five of breaking entering and stealing, one attempted breaking and entering with intent, three of receiving and one of unlawfully using a motor vehicle.

The summary offences included:  escape; two breaches of the Bail Act; possession of dangerous drugs and related implements; driving while disqualified; possession of unlicensed firearms and others.  He committed the offences over a two year period from 1996 to 1998. 

The property offences covered a wide range of property.  The overall value appears to have been less than $10,000.  He had a substantial prior criminal history including convictions for similar offences.  He had been given the benefit of community based orders.  He committed many of the subject offences while on probation to which he was reported to have given “only superficial attention”. 

He pleaded guilty to the offences.  He had cooperated with the authorities, but substantially only after only being extradited from New South Wales to Queensland following an earlier escape from custody.

Two breaches of the Bail Act each attracted three months imprisonment, necessarily cumulative, to the extent of six months on the other sentences.  The Crown submitted he should receive at least five years imprisonment.  No doubt reflecting the pleas of guilty especially, the sentencing Judge imposed a lesser term, in effect a three and a-half year term, adding then the six months to produce an overall four year term. That is said, by Mr Chowdhury, not adequately to reflect the pleas of guilty and his age.

As to his age when he committed these offences, he was 21 to 23 years old and had already accumulated a substantial record.  He had already been given the benefit of community orders and failed to respond.  His age was therefore, not to my mind, a constraining factor.

The pleas of guilty warranted moderation.  But they did come following extradition and his having been at large for 15 months.  I believe he secured sufficient moderation through the learned Judge’s adoption of the three and a-half year term.

The applicant relied on Brodie COA 369/95; Locke COA 198/97, and Davidson COA 210/97.  For rather similar offending, Brodie was imprisoned for three and a-half years with parole recommended after 18 months.  But he was three to four years younger than the applicant and had fully and extensively cooperated as the Court of Appeal recorded.

The female, Locke, was sentenced to three and a-half years with parole after 18 months.  She had a six month old child and appears not also to have breached bail.  Davidson, who ended up subject to four and a-half year’s imprisonment with parole after 18 months, was effectively, a first offender.

So there are points of distinction in all of those cases when they are balanced against this one.  I consider that the sentence of three and a-half years imprisonment, following pleas of guilty for property crime of this magnitude, without an added recommendation with relation to parole, committed by a man in his early twenties with a substantial prior criminal record where community based orders had failed, was plainly within range.

It was, I believe, a moderate term for this crime committed by this man in these circumstances and did appropriately reflect the pleas of guilty.  There is, to my mind, no substance to the application which should be dismissed.

THE PRESIDENT:  I agree with the Chief Justice that the head sentence in this case was within the appropriate range, but in my view, which I should add is not shared by my judicial colleagues, a recommendation for parole slightly earlier than the usual half-way point, was appropriate.  This is because of the comparative youth of the applicant; (24 now, and 21 to 23 at the time of the offences) and particularly because of his plea of guilty.

He was making efforts at his rehabilitation and this was demonstrated by his own letter to the Judge, the letter from the Community Correctional Officer, and a letter offering employment when he is released.

There were serious aspects to these offences which have been outlined by the learned Chief Justice.  The offences constituted a breach of probation and some of them were committed whilst the applicant was on bail.  The offences involved over $6,000 worth of property.  The applicant had some criminal history and had committed similar offences in the past.  He had had the benefit of probation but he had not been previously sentenced to a term of imprisonment. 

In all the circumstances, he, in my view, should have been recommended for release on parole after serving 12 to 18 months.  I would allow the application and allow the appeal only to the extent of adding a recommendation for parole after 15 months.

DUTNEY J:  While a plea of guilty may often result in a discount by way of a recommendation for early parole, the reflection of a plea of guilty in the sentence is a matter of discretion for the sentencing Judge. 

In this case, I am not able to see that the sentencing Judge has not chosen to reflect the plea of guilty in adopting a sentence of three and a-half years in the circumstances of these offences rather than a term closer to that sought by the Crown.

I therefore am not persuaded that the sentence is outside the range of the sentencing discretion and I agree with the order proposed by the Chief Justice.

THE CHIEF JUSTICE:  The application is refused.