McMaster v The Queen - [2019] NTCCA 25

CITATION: McMaster v The Queen [2019] NTCCA 25
PARTIES: McMASTER, Dean Stewart

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 13 of 2019 (21812276)
DELIVERED:  12 December 2019
HEARING DATE:  12 December 2019
JUDGMENT OF:  Grant CJ, Southwood and Barr JJ
CATCHWORDS:

CRIME — Appeals — Appeal against sentence — Manifest excess

Whether imposition of a conviction manifestly excessive – Recording of conviction appropriate to mark disapproval of the applicant’s wrongdoing – Whether imposition of community work order requiring 400 hours of work manifestly excessive – Given significant lapse of time between date of offending and date of sentencing, and the applicant’s good behaviour throughout that period, open to convict and discharge applicant without further penalty – Appeal allowed in part – Applicant resentenced.
Criminal Code 1983 (NT) s 429
Carnese v R [2009] NTCCA 8, R v McInerney (1986) 42 SASR 125, referred to.

REPRESENTATION:
Counsel:
Applicant:P Elliott
RespondentD Dalrymple with L Hopkinson
Solicitors:
Applicant:On direct brief
RespondentOffice of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 9

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McMaster v The Queen [2019] NTCCA 25

No. CA 13 of 2019 (21812276)
BETWEEN:

DEAN STEWART McMASTER
Applicant

AND:

THE QUEEN
Respondent

CORAM: GRANT CJ, SOUTHWOOD and BARR JJ
REASONS FOR JUDGMENT
(Delivered ex tempore on 12 December 2019)
THE COURT

The applicant contends that his sentence was manifestly excessive for a number of reasons. His application for leave to appeal against sentence has been referred to this Court pursuant to s 429(2) of the Criminal Code 1983 (NT).
On 3 June 2019, the applicant entered a plea of guilty to Count 3 of the indictment charging him with assault, with the admitted circumstance of aggravation that it was a male-on-female assault. The offence carries a maximum penalty of five years’ imprisonment.
The offending took place in Katherine on the evening of 24 August 2001. At the time, the applicant was a Northern Territory Police Sergeant. He had been posted to Katherine Police Station in or about February 2001. He was a qualified firearms and defensive tactics instructor. The female victim was a 25 year old probationary constable. Katherine was her first posting out of recruit training. Because she had not at that stage qualified in firearms and defensive tactics, the applicant had been tasked to train and qualify her before she could assume the role of an operational police officer.
After a social function at the Katherine Police Club on Friday, 24 August 2001, the applicant asked the victim for a lift home. He was intoxicated. The victim drove the applicant to his home, but he then asked her to keep driving. He said he did not want his pregnant wife to see him in his intoxicated state. The victim agreed to take the applicant to her residence until he sobered up…

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 McMaster v The Queen

Details

AGLC: McMaster v The Queen [2019] NTCCA 25
Case: [2019] NTCCA 25
Decision Date: 12 December 2019

CaseChat Overview and Summary

McMaster appealed against a sentence imposed by the County Court of Victoria. The applicant had been convicted of an offence and sentenced to a community work order requiring 400 hours of work. The appeal concerned whether the imposition of a conviction and the specific sentence were manifestly excessive.

The primary legal issues before the Court of Appeal were whether the recording of a conviction was appropriate to mark disapproval of the applicant's wrongdoing, and whether the 400-hour community work order was manifestly excessive in the circumstances.

The Court of Appeal reasoned that while a conviction was appropriate to mark disapproval of the applicant's conduct, the length of the community work order was excessive, particularly given the significant lapse of time between the date of the offending and the date of sentencing, and the applicant's good behaviour during that period. The court held that it was open to convict and discharge the applicant without further penalty. Consequently, the appeal was allowed in part, and the applicant was resentenced.

Orders