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Masters v R

Masters v R

Case [2019] NSWCCA 233 30 September 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Masters v R [2019] NSWCCA 233
Hearing dates: 6 September 2019
Date of orders: 30 September 2019
Decision date: 30 September 2019
Before: Bathurst CJ at [1];
Macfarlan JA at [2];
Hamill J at [3]
Decision:
(1)   Application for leave to appeal granted.
(2)   Appeal allowed.
(3)   Quash the sentence imposed in the District Court, and in lieu thereof:
(a)   The applicant is sentenced to an aggregate sentence of 4 years commencing on 3 October 2017 and expiring on 2 October 2021 with a non-parole period of 2 years expiring on 2 October 2019.
(b)   The applicant will be eligible for release on parole at the expiration of the non-parole period.
(4)   Confirm the compensation order made in the District Court.

Catchwords: CRIMINAL LAW – appeal against sentence - kidnapping and attempted arson – bizarre offending - offender with mental illness - relevance to sentencing - reduction in moral culpability - error in failing to take into account - offences committed during change of drug regime - failure to follow doctor’s orders - where no history of violent or bizarre behaviour - correct approach to sentencing - prospects of rehabilitation - failure to make finding - error in sentencing process - applicant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW) ss 86(1), 195(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 33, 44 and 53A
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Gal v R [2015] NSWCCA 242
Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39
Jung v R [2017] NSWCCA 24
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lam v R [2015] NSWCCA 143
R v Billy Krey [2019] NSWSC 762
R v Champion (1992) 64 A Crim R 244
R v DW [2012] NSWCCA 66
R v Israil [2002] NSWCCA 255
R v Kelsall [2015] NSWSC 480
R v Letteri (Unreported, New South Wales Court of Criminal Appeal, 18 March 1992)
Ryan v Regina [2017] NSWCCA 209
WW v R [2012] NSWCCA 165
Zuffo v R [2017] NSWCCA 187
Category: Principal judgment
Parties: Russell Lee Masters (Applicant)
Regina (Respondent)
Representation:
Counsel:
B Neild (Applicant)
B Hatfield (Respondent)
Solicitors:
Legal Aid Commission (Applicant)
Director of Public Prosecutions NSW (Respondent)

File Number(s): 2017/298500
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

31 August 2018

Before:

Acting Judge Marien SC

File Number(s):

2017/00298500

Judgment

BATHURST CJ: I have read the judgment of Hamill J in draft. I agree with the orders proposed by his Honour and with his Honour’s reasons.
MACFARLAN JA: I agree with Hamill J.
HAMILL J: Russell Lee Masters (the applicant) seeks leave to appeal against an aggregate sentence imposed on him by Acting Judge…

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 Masters v R

Details

AGLC: Masters v The Queen [2019] NSWCCA 233
Case: [2019] NSWCCA 233
Decision Date: 30 September 2019

CaseChat Overview and Summary

Masters appealed against his conviction and sentence for kidnapping and attempted arson, arguing that the primary judge failed to adequately consider his mental illness, which he claimed reduced his moral culpability. The court was required to determine whether the primary judge erred in not taking into account the impact of Masters’ mental illness on his culpability and whether the sentence imposed was appropriate given the mitigating factors. The court held that the primary judge erred by not considering the mitigating effect of Masters' mental illness on his moral culpability and by not making findings about Masters’ prospects of rehabilitation. The court further held that the sentence imposed was manifestly inadequate, as it did not reflect the unique circumstances of the offending and Masters' mental illness. The appeal was allowed, and Masters was re-sentenced. The court ordered that Masters be re-sentenced, taking into account his mental illness, prospects of rehabilitation, and the peculiar circumstances of the offending.

Orders