R v Mason

[2003] QCA 299

SUPREME COURT OF QUEENSLAND

CITATION:	R v Mason [2003] QCA 299
PARTIES:	R v MASON, Anthony Andrew (applicant)
FILE NO/S:	CA No 69 of 2003 DC 2147 of 2001 DC 387 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave to Appeal against Sentence
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX	17 July 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2003
JUDGES:	Davies and Jerrard JJA, Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APEPAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – whether penalty offends totality principle of sentencing
COUNSEL:	A W Moynihan for the Applicant M J Copley for the Crown
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the Crown

DAVIES JA: I will ask Mr Justice Helman to deliver his sentence.

reasons first.

On 16 October 2001, the applicant came before the District Court at Brisbane to answer an indictment containing three counts: entering premises and stealing, robbery in company,

and assault with intent to resist his lawful arrest. All
three offences were allegedly committed on 5 June 2000. The
applicant pleaded guilty to the three counts and was sentenced
to imprisonment for six months on the first and third and to
imprisonment for four and a half years on the second. The
learned sentencing judge ordered that the term of imprisonment
on the second charge be suspended after the applicant had
served twelve months. The operational period was to be five
years. At the time those sentences were imposed, the
applicant had been in pre-sentence custody for 140 days and

that time was deemed to have been served under the sentences.

On 27 February this year, the applicant was brought before the imprisonment imposed on 16 October 2001 be served and that the two-year term be served cumulatively upon that earlier sentence, so that the applicant is now subject to a total term of imprisonment of five and a half years - in addition to the one year already served - 156 days of which are deemed to have been served.

judge who had sentenced him in October 2001 to answer an
indictment containing three counts of burglary. The offences,
it was alleged, were committed on 15 August 2002, 29 August
2002 and 15 September 2002. The applicant pleaded guilty to
all three counts and was sentenced to imprisonment for two
years. This time the applicant had been in pre-sentence
custody for 156 days and that time was deemed to have been
served under the sentence.

On his behalf, it is asserted that that penalty is too much, offends the totality principle of sentencing, and so is manifestly excessive.

Mr Moynihan, for the applicant, conceded that it was a proper exercise of the learned judge's sentencing discretion to order that the applicant serve the whole of the unexpired portion of the suspended sentence and to order that the sentences for the burglaries be served cumulatively on that earlier sentence; his Honour's error lay, however, in imposing too long a period of imprisonment for the burglaries. Mr Moynihan submitted one year, rather than two, would have met the case adequately.

There would, I think, have been merit in Mr Moynihan's arguments, were it not for two striking features of this case. First, although the applicant is now only twenty-four, he has a lengthy criminal record, which began when he was convicted before the Beenleigh Childrens Court, at the age of thirteen, on a charge of stealing. Since then, he has been convicted of many offences apart from those now under consideration including breaking and entering offences, stealing, receiving, unlawful use of motor vehicles, breaches of the Bail Act, and attempted robbery. He has been a persistent offender, obstinately pursuing a life of crime. Secondly, his Honour gave the applicant a chance to redeem himself by suspending the four and a half year sentence on 16 October 2001, but, within two months of his release on 21 June 2002, he had resumed his anti-social activities by committing the first burglary.

Had the applicant not had the lengthy criminal history he has and had he not abused the leniency shown him in October 2001, I should have been persuaded that there was merit in the

submissions suggesting the recent sentencing was too severe,
but, bearing in mind those two features of the case, I am not
persuaded that his Honour exceeded the bounds of a sound
sentencing discretion. The case does not call for the

intervention of this Court.

The application should be refused.

DAVIES JA: I agree.

JERRARD JA: The minimum term the applicant must serve is
three years and eight months, calculated by applying Sections
75 and 76 of the Corrective Services Act 2000.

If his behaviour in custody is appropriate, that is the sentence he can expect to serve. That is not a manifestly excessive result in the circumstances and accordingly, I agree that the application should be dismissed.

DAVIES JA: The order is as indicated by Mr Justice Helman.