R v Maslen

[1999] NSWSC 926

CITATION:	R v Maslen [1999] NSWSC 926
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70028/98
HEARING DATE(S):	18/06/1999; 25/06/1999; 13/08/1999
JUDGMENT DATE:	20 August 1999
PARTIES :	Regina Jason Paul Maslen
JUDGMENT OF:	Hidden J at 1

COUNSEL :	G. Nicholson QC (Maslen) M.M. Cunneen (Crown)
SOLICITORS:	Mark Rumore (Maslen) Director of Public Prosecutions (Crown)
CATCHWORDS:	Sentence - plea of guilty to accessory before the fact to robbery - accepted in discharge of indictment for murder - elderley victim falls, later dies - special circumstances.
DECISION:	Penal servitude for two years: minimum term twelve months. To be released to parole on 13 August 2000.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL LAW DIVISION

HIDDEN J
Friday 20 August 1999
70028/98
Regina v Jason Paul Maslen


Remarks on Sentence: Ex tempore

1     HIS HONOUR : The prisoner, Jason Paul Maslen, was indicted for murder and in the alternative for accessory before the fact to robbery. He pleaded guilty to that alternative charge, which the Crown accepted in full satisfaction of the indictment.

2     Last Friday, 13 August, I dealt with a young co-offender ( R v PHL ). I set out briefly the facts of the matter when sentencing that young man and there is no need to repeat them now.

3     The evidence as to when it was the prisoner became party to a plot to rob someone is conflicting. When interviewed by police, the prisoner said that they had set out in the car for that very purpose. In evidence before me, there was a suggestion of impropriety on the part of the interviewing police, but I do not find it necessary to resolve that matter and at the end of the day it was not pressed as a matter having any relevance to my sentencing task.

4     In evidence before me, the prisoner said that it was only in the course of the journey that the question of robbing someone was raised and he became a party to the plan to do so. Really, I do not think anything much turns on the distinction and it is not a factual issue which I feel any need to resolve. From the relatively meagre proceeds of the robbery the prisoner himself received five dollars.

5     The incident had tragic results but I must emphasise, as I did when dealing with the young co-offender, that the prisoner stands for sentence in relation to a charge of accessory before the fact to robbery and not for any form of criminal responsibility for that unfortunate lady's death. In sentencing the prisoner I have regard to his role in the offence, which can properly be classified as somewhat less than that of the young co-offender. This is not to deny the seriousness of offences of this kind. There is no need to repeat what I said about that when dealing with the young co-offender. Crimes of this kind are very serious, whatever be the level of involvement of the particular offender.

6     I take into account his plea of guilty and in evidence before me he expressed remorse. I also have regard to the fact that for the best part of two years he was on bail subject to fairly stringent conditions involving reporting to police and a curfew.

7     The prisoner was twenty-five years old at the time of the offence and is now twenty-seven. He has no prior convictions. His background is set out in a psychological assessment of Mr G. D. Fathers, which I have found of considerable assistance. I do not see any need to summarise that background now, except to observe that the prisoner clearly has had and continues to have the benefit of a supportive family. It is equally clear that he needs that benefit. In the report, Mr Fathers himself commented that away from the family structure the prisoner seems not to be able to manage very well for himself. Clearly, that is so and the offence occurred during a period when he was in Sydney without the benefit of that family support and when he was associating with youths much younger than he. Mr Fathers commented: "What remains unexplained is his association with the juveniles and his willingness to participate in the offence."

8     Mr Fathers concluded that he exhibits features of a schizoid personality disorder. He added that he seems to be detached from social relationships and his range of emotional expression is limited. Astutely, I might add, he commented: "While he may have company about him, he remains a solitary figure." Mr Fathers concluded that the prisoner "has a clinical psychological disorder which needs further assessment and treatment considerations. The latter would not present as an easy task set to manage".

9     In the light of that material, it is common ground that there are special circumstances warranting a longer than usual additional term. At pp8- 9 of his report, Mr Fathers comments upon the difficulties this prisoner with his personality profile might face in the prison system and I invite the attention of that material to the Corrective Services authorities. I repeat my recommendation last Friday that great care be taken in his management and that he be classified as soon as possible, and I recommend most strongly, if it be possible, that he serve the lion's share of his sentence at Grafton so as to be within easy reach of his parents, so that they can provide the support which he needs so much.

10     I do not consider that there is any question of parity of sentence between this prisoner and the young offender whom I dealt with last Friday. As it happens, that offender had served some twenty months in custody before I released him on probation but I do not consider that term any benchmark for arriving at the custodial portion of the sentence which this prisoner must serve.

11     Senior counsel who appeared for the prisoner submitted that a minimum term of the order of twelve months is appropriate and in my view that submission is sound.

12     You are sentenced to penal servitude for two years, comprising a minimum term of twelve months to date from 13 August 1999 and to expire on 12 August 2000 and an additional term of twelve months. I order that you be released to parole on 13 August 2000 and that during that parole period you submit to the supervision and guidance of the Probation and Parole Service.
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Last Modified: 10/20/1999