Massey v The Queen - [2001] FCA 1703

FEDERAL COURT OF AUSTRALIA
Massey v The Queen [2001] FCA 1703
CRIMINAL LAW – sentence – appeal against severity of sentence – plea of not guilty – conduct of trial – lying on oath – whether wrongly taken into account for purpose of sentence - Crimes Act 1900 (ACT), s 429B.
CRIMINAL LAW – sentence – non-parole period – conviction and prison sentence for more than one offence – whether non-parole period to be fixed in respect of each sentence – whether non-parole period may be fixed before sentences for all offences have been pronounced.
CRIMINAL LAW – sentence – time spent in custody awaiting trial and sentence – Crimes Act 1900 (ACT), s 451 – whether “reckoning” of time spent to be carried out at time of sentence or after -–need for reliable information to be available to sentencing judge.
CRIMINAL LAW – sentence – offender already serving term of imprisonment – multiple terms of imprisonment – dates of expiry of current term and current non-parole periods to be taken into account – need for reliable information to be available to sentencing judge.
CRIMINAL LAW – sentence – youthful offender with serious criminal history – need to avoid crushing sentence – principle of totality.
CRIMINAL LAW – sentence – appeal against sentence – court informed of conviction of further offence – desirability of remitting to Supreme Court for re-sentencing for all offences.
Crimes Act 1900 (ACT), ss 429A, 429B, 443, 446, 451
Parole Act 1976 (ACT), ss 7, 8, 22, 23, 24
Sentencing Act 1991 (Vic), ss 5, 18, 35
Keen v The Queen [2000] FCA 940, cited
Geiger v The Queen [2001] FCA 475, affirmed
R v Holder [1983] 3 NSWLR 245, cited
DPP v Ibrahimoff [2001] VSCA 46, cited
MATTHEW JAMES MASSEY v THE QUEEN
A3 of 2001
MILES, O’LOUGHLIN and MADGWICK JJ
7 DECEMBER 2001
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
A3 of 2001
ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

MATTHEW JAMES MASSEY
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

MILES, O'LOUGHLIN and MADGWICK JJ

DATE OF ORDER:

7 DECEMBER 2001

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The appeal against sentence be allowed, the orders and sentences of the Supreme Court of 9 February 2000 be set aside and those matters be remitted to the Supreme Court for sentencing with the recommendation that the appellant be sentenced at the same time for these remitted matters as he is sentenced for a further conviction for an offence of armed robbery committed prior to 15 November 1999.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
A3 of 2001
ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

MATTHEW JAMES MASSEY
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

MILES, O'LOUGHLIN and MADGWICK JJ

DATE:

7 DECEMBER 2001

PLACE:

CANBERRA

REASONS FOR…

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 Massey v The Queen

Details

AGLC: Massey v The Queen [2001] FCA 1703
Case: [2001] FCA 1703
Decision Date: 7 DECEMBER 2001

CaseChat Overview and Summary

The appellant, Massey, was convicted of multiple offences and sentenced by the Supreme Court of the Australian Capital Territory. Massey appealed the severity of his sentence, arguing that it was excessively harsh. The appeal was heard by the High Court of Australia. The primary legal issues before the court were whether the trial judge had correctly considered the principles of sentencing, including the principle of totality, and whether the sentence was appropriate in light of the appellant's age, criminal history, and the need to avoid a crushing sentence. Further, the court considered whether the non-parole period for the sentences could be determined before all sentences were pronounced and if the time spent in custody awaiting trial and sentence could be reckoned at the time of sentencing or later. The court also examined the relevance of the appellant's current imprisonment term and non-parole periods in determining the new sentence.

The court found that the trial judge had not appropriately applied the principle of totality in sentencing, particularly by considering the appellant's age and criminal history. The court noted that the appellant, being a youthful offender with a serious criminal history, required a sentence that avoided being crushing. Additionally, the court ruled that the non-parole period for sentences could be fixed before all sentences were pronounced, but only if reliable information was available to the sentencing judge. The court also concluded that the reckoning of time spent in custody awaiting trial and sentence should be carried out at the time of sentencing to ensure the sentencing judge had all necessary information. The court found that the appellant's current imprisonment term and non-parole periods should be taken into account when determining the new sentence. Ultimately, the court found that the appeal against the sentence should be allowed and the matter should be remitted to the Supreme Court for re-sentencing.

The court set aside the orders and sentences of the Supreme Court and remitted the matters to the Supreme Court for re-sentencing. The court recommended that the appellant be sentenced at the same time for the remitted matters and a further conviction for armed robbery. This decision ensured that the appellant's sentence was reconsidered in light of the court's findings regarding the application of the principle of totality and the need for reliable information in the sentencing process.

Orders

Orders of the court

1. The appeal against sentence be allowed, the orders and sentences of the Supreme Court of 9 February 2000 be set aside and those matters be remitted to the Supreme Court for sentencing with the recommendation that the appellant be sentenced at the same time for these remitted matters as he is sentenced for a further conviction for an offence of armed robbery committed prior to 15 November 1999.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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BETWEEN:	MATTHEW JAMES MASSEY APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGES:	MILES, O'LOUGHLIN and MADGWICK JJ
DATE OF ORDER:	7 DECEMBER 2001
WHERE MADE:	CANBERRA

JUDGES:	MILES, O'LOUGHLIN and MADGWICK JJ
DATE:	7 DECEMBER 2001
PLACE:	CANBERRA