R v Mason - [2000] NSWCCA 82

CITATION: R v Mason [2000] NSWCCA 82

FILE NUMBER(S): CCA 60153/99

HEARING DATE(S): 22/03/00

JUDGMENT DATE:
22 March 2000

PARTIES :

Regina v Stuart William Mason

JUDGMENT OF: Abadee J at 1; James J at 10

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0090

LOWER COURT JUDICIAL
OFFICER : Acting Judge Nader

COUNSEL : Mr M Grogan - Crown
Ms R. Burgess - Appellant

SOLICITORS: S. E. O'Connor - Crown
T. A. Murphy - Appellant

LEGISLATION CITED: Drug Misuse & Trafficking Act 1985
Evidence Act

CASES CITED:
R v Chanh Thanh Ma (CCA 31 March 1995, unreported)
The Queen v Grant (Vic CCA 27 June 1994, unreported)
Stol v The Queen (1989) 44 A Crim R 137 (WA, CCA)
R v Selim (CCA 19 May 1998 unreported)

DECISION: Leave to appeal the sentence be granted. Appeal be allowed. The sentence should be quashed and the following sentence substituted: The applicant be sentenced to imprisonment for 18 months consisting of a minimum term of 12 months to commence 10 June 1999 expiring on 9 June 2000 and to an additional term of six months to commence on 10 June 2000. The applicant is eligible to be released on parole on 9 June 2000.

IN THE COURT

OF CRIMINAL APPEAL

60153/99

ABADEE J

JAMES J

WEDNESDAY 22 March 2000

REGINA v Stuart William MASON

JUDGMENT

1 ABADEE J: On 1 April 1999 the applicant adhered to a plea of guilty to a charge of supplying a prohibited drug being methylamphetamine between 1 August and 31 August 1998. The applicant was sentenced by his Honour Acting Judge Nader on 1 April 1999 following that plea. The offence was charged under the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985 the maximum penalty on the conviction being that of 15 years. His Honour sentenced the applicant to four years imprisonment comprising a minimum term of three years commencing on 10 June 1999 and an additional term of one year. 2 His Honour in his sentencing reasons considered the matter of special circumstances but for reasons given by his Honour declined to find special circumstances in the case. 3 His Honour made reference to an earlier sentence imposed on the applicant by Judge Sides on 10 September 1998. At that point of time he had not been charged with the matter for which sentence was imposed by Judge Nader. The sentence imposed by Judge Sides was for two counts of assault occasioning actual bodily harm committed on 21 August 1997. 4 As the Crown has indicated, there was delay in the charging of the applicant in respect of the drug offence the subject of this appeal. That said, it does seem to me that there is force in the Crown's submission that the delay is explicable as being attributable to there being at the time of the sentencing by Judge Sides an ongoing investigation into certain drug matters involving the applicant. Judge Sides sentenced the applicant to a…

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 R v Mason

Details

AGLC: R v Mason [2000] NSWCCA 82
Case: [2000] NSWCCA 82
Decision Date: 22 March 2000

CaseChat Overview and Summary

In the matter of Regina v Stuart William Mason, the applicant was convicted of supplying a prohibited drug, methylamphetamine, under the Drug Misuse and Trafficking Act 1985, and sentenced to four years in prison by the District Court. The applicant appealed the sentence to the Court of Criminal Appeal, arguing that the trial judge erred in applying the wrong maximum penalty, in making assumptions about the nature and effects of amphetamines without expert evidence, in failing to consider his drug addiction as a mitigating factor, and in not finding special circumstances. The Crown conceded that there was an error in the maximum penalty applied but argued that the sentence was still appropriate. The court found that the errors in sentencing warranted intervention and re-sentencing.

The court addressed the applicant's arguments and found that the trial judge indeed erred in applying the wrong maximum penalty, which was 15 years instead of the 20 years stated by the Crown. The court also found that the trial judge erred in making assumptions about the nature and effects of amphetamines and in not considering the applicant's drug addiction as a mitigating factor. The court found that these errors, in addition to the error in the maximum penalty, warranted intervention and re-sentencing. The court also found that special circumstances existed, given the delay in bringing the charge and the applicant's subjective circumstances. The court proposed a new sentence of 18 months, consisting of a minimum term of 12 months and an additional term of six months, with the possibility of parole on 9 June 2000. The court granted leave to appeal the sentence, allowed the appeal, quashed the original sentence, and substituted the new sentence.

Orders