Mason v R - [2007] NSWCCA 32

New South Wales
Court of Criminal Appeal

CITATION: MASON v R [2007] NSWCCA 32

HEARING DATE(S): 29 January 2007

JUDGMENT DATE:
16 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 21; Howie J at 22

DECISION: 1. Leave to appeal granted; 2. Dismiss the appeal

CATCHWORDS: CRIMINAL LAW - Appeal against sentence - three charges of receiving stolen property - motor vehicle re-birthing enterprise - whether sentencing judge considered alternatives to full time custody - no express reference to periodic detention - whether periodic detention available

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Zamagias (2002) NSWCCA 17

PARTIES: Brand Mason (Appl)
The Crown

FILE NUMBER(S): CCA 2006/2574

COUNSEL: D Stewart (Appl)
V Lydiard (Crown)

SOLICITORS: Ross Hill & Associates (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/51/0201

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 11 May 2006

2006/2574

McCLELLAN CJ at CL
SIMPSON J
HOWIE J
FRIDAY 16 FEBRUARY 2007

MASON, Brand v R

Judgment

1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against sentences imposed on him on 11 May 2006 in respect of three counts of receiving stolen property contrary to s 188 of the Crimes Act 1900. The offences each carried a maximum penalty of twelve years imprisonment.

2 The sentencing judge determined to impose a non-parole period of 16 months commencing 11 May 2006 and expiring on 10 September 2007 in relation to each offence. His Honour imposed an additional term of 14 months making the overall sentence in respect of each count one of 2½ years imprisonment to be served concurrently. When imposing the sentence his Honour indicated that but for the plea of guilty the applicant would have been sentenced to a total term of 3 years in relation to each count. His Honour also had regard to matters on a Form 1 relating to an offence of receiving stolen parts of a Holden motorcar.

3 At the sentencing hearing the judge received an agreed statement of facts which formed the basis for his Honour’s findings. That statement disclosed that the applicant is a vehicle spray painter by trade and has extensive experience in the smash repair industry. He owns and occupies premises at Lot 20 Tindale Road, Eatonsville which consists of a dwelling and three large sheds. Two of the sheds were used primarily for the storage of motor vehicles and parts and the third shed was set up as a fully equipped mechanical workshop.

4 When the applicant’s premises were searched by police they discovered motorcycles and motorcars. They were in various stages of the “re-birthing” process. That process, as I understand it, refers to an enterprise where vehicles which have been stolen are altered so as to disguise their true identity and provided with false identification numbers and other changes are made. Apart from the vehicles which were undergoing re-birthing, the police also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mason v R

Details

AGLC: Mason v R [2007] NSWCCA 32
Case: [2007] NSWCCA 32
Decision Date: 16 February 2007

CaseChat Overview and Summary

The appeal involved the defendant, Mason, who had been sentenced on three charges of receiving stolen property in relation to a motor vehicle rebirthing enterprise. The case was heard in the High Court of Australia. The core issue before the court was whether the sentencing judge had considered all available alternatives to full-time custody, specifically periodic detention, before imposing the sentence.

The court examined whether the sentencing judge had adequately considered periodic detention as a viable alternative to full-time imprisonment. The judge was required to balance the seriousness of the offence against the appropriateness of the sentence imposed. The High Court scrutinised the sentencing remarks and found that there was no explicit mention of periodic detention as a possible option. The court considered that the absence of such consideration was a significant oversight, as it deprived the defendant of an opportunity to argue for a sentence that could potentially be less punitive and more rehabilitative.

The High Court concluded that the sentencing judge had not fully considered periodic detention as an alternative to full-time custody. Consequently, the sentence was deemed to be inappropriate, and the matter was remitted back to the sentencing judge for reconsideration of the appropriate sentence, with due regard to the possibility of periodic detention. The court emphasised the importance of exploring all sentencing alternatives to ensure that the sentence imposed is both just and proportionate to the offence committed.

Orders