R v Mason - [1998] QCA 177

COURT OF APPEAL

[1998] QCA 177

FITZGERALD P
DAVIES JA
FRYBERG J

CA No 3 of 1998

THE QUEEN

SYDNEY DERECK MASON Applicant

BRISBANE

..DATE 24/02/98

JUDGMENT

THE PRESIDENT: The applicant has applied for an extension of time within which to seek leave to appeal against sentences imposed upon him in the District Court at Bundaberg on 31 October 1997.

Shortly stated, the applicant, an 18-year-old Aborigine, has sworn that he was not advised by his legal representatives that there was any basis for considering his sentences manifestly excessive and that he was unaware until 22 December 1997 that there might be a basis for an application for leave to appeal against his sentences. The application for an extension of time was filed on the following day.

While the explanation given for the delay is not particularly convincing, we have the material relevant to the argument that the sentences were manifestly excessive before us and we have heard oral argument making reference to that material.

Although he was only aged 17 when some of the relevant offences were committed, and 18 when the remainder were committed, the applicant, who is still 18, had a significant criminal history involving offences of dishonesty.

He was sentenced to 40 hours of community service in Rockhampton Children's Court for housebreaking and two offences of stealing in 1995. About a year later he was sentenced in the Bundaberg Magistrates Court to six months imprisonment for unlawful use of a motor vehicle; nine months imprisonment with a recommendation that he be considered eligible for parole after four and a half months, for three
offences of breaking, entering and stealing, and four months imprisonment for wilful and unlawful damage in the night. All three sentences were ordered to be served concurrently.

A few months later he was again sentenced in the Bundaberg Magistrates Court to three months imprisonment for possession of implements, which was ordered to be served concurrently with the sentences earlier imposed in the Bundaberg Magistrates Court.

In about the middle of 1997 he was placed on probation for 12 months in the Bundaberg District Court for an offence of burglary, four offences of stealing and an offence of wilful and unlawful damage.

Prior to that time the applicant had committed the first of the offences for which he was sentenced in the District Court at Bundaberg on 31 October 1997, to which the present application relates.

In February of that year he broke into a home in Bundaberg and stole various household goods. At that time he was on parole. He was sentenced to imprisonment for four years for housebreaking and to imprisonment for 18 months for stealing, such sentences to be served concurrently with each other and with all other sentences which were imposed upon the applicant in the Bundaberg District Court on 31 October 1997 - that is, all other offences to which the present application relates.

Most of the remaining offences for which he was sentenced on that day occurred…

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 [1998] QCA 177
Case: [1998] QCA 177
Decision Date: 24/02/1998

CaseChat Overview and Summary

The case of R v Mason involved the applicant, Sydney Dereck Mason, who sought an extension of time to appeal against sentences imposed by the District Court at Bundaberg. Mason, an 18-year-old Aboriginal man, argued that he was not informed by his legal representatives that there was a basis for considering his sentences to be manifestly excessive and that he was unaware until 22 December 1997 of any potential grounds for appeal. The application for an extension of time was filed on 23 December 1997. The court had to determine if the applicant's explanation for the delay was acceptable and if there was a basis to argue that the sentences were manifestly excessive.

The court considered Mason's significant criminal history, which involved multiple offences of dishonesty, despite his youth. The court also noted that Mason had cooperated with the police, pleaded guilty to an ex officio indictment, and pleaded guilty to summary offences. However, the court acknowledged that Mason's sentences were high and that a recommendation for earlier eligibility for parole should have been made, taking into account his youth, cooperation with the police, and guilty pleas. The court also considered Mason's personal circumstances, such as his depression and heroin addiction at the time of the offences. The court found that a recommendation for parole eligibility after nine months, rather than 19 months, would have been more appropriate.

The court granted the application for an extension of time and the application for leave to appeal against the sentence. However, the court affirmed the sentence imposed, with the modification that Mason should be considered eligible for parole after serving nine months instead of 19 months. The court's decision was that the sentence as imposed should stand, with the modification to the parole eligibility recommendation.

Orders