R v Mason (No 2) - [2019] ACTSC 173

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Mason (No 2)

Citation:

[2019] ACTSC 173

Hearing Date:

26 June 2019

Decision Date:

26 June 2019

Before:

Penfold J

Decision:

The offender is convicted of three offences and is sentenced to two good behaviour orders, and a recognisance release order, each for a period of six months from the day of sentence.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – charges transferred from Magistrates Court in conjunction with charges on indictment – offender found not guilty of charges on indictment – offender found guilty of trespass and minor theft – offender pleaded guilty to possession of cannabis – all offences of low objective seriousness – disability and mental health considerations – good behaviour orders and recognisance release order

Legislation Cited:

Criminal Code 2002 (ACT) s 321

Drugs of Dependence Act 1989 (ACT) s 171(1)(a)

Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11

Cases Cited:

R v Mason [2019] ACTSC 161

Parties:

The Queen (Crown)

Shane John Mason (Offender)

Representation:

Counsel

M Howe (Crown)

R Davies (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 124 of 2014; SCC 125 of 2014

Penfold J

Introduction

1.        By judgment handed down in R v Mason [2019] ACTSC 161, I found Shane Mason not guilty of several charges relating to two fires that started on rural land near the Molonglo River, below Scrivener Dam, on two separate occasions in January 2014.
2. I did, however, find him guilty in that trial of two offences, being trespass under s 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth), and minor theft under s 321 of the Criminal Code 2002 (ACT), both offences having been committed in mid-January 2014, and having come to light during investigations of the second of those fires.
3. In the Magistrates Court Mr Mason had earlier pleaded guilty to a charge of possession of cannabis which came to light during investigation of the first of the two fires, on 5 January 2014. The evidence is that the cannabis possessed was a quantity of around 8 grams. The effect of that is to render Mr Mason liable to penalty under s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT).
4.        Especially given the delays in finalising the more serious charge in this matter, but also given the large amount of material that was available to me for the purposes of the trial and that needed to be considered before Mr Mason is sentenced, I consider that it is in the interests of justice for Mr Mason to be sentenced now for those three offences, rather than having them referred back to the Magistrates Court for sentence.
5.        I note at this stage the penalties for the three offences are as follows:
(a)       for the Commonwealth offence of trespass, the maximum penalty is 10 penalty units;
(b)…

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 (No 2)

Details

AGLC: R v Mason (No 2) [2019] ACTSC 173
Case: [2019] ACTSC 173
Decision Date: 26 June 2019

CaseChat Overview and Summary

In the case of R v Mason (No 2), the defendant faced charges following a transfer from the Magistrates Court to the Supreme Court. Mason was found not guilty on charges related to an indictment but was found guilty of trespass and minor theft. Additionally, Mason had pleaded guilty to the possession of cannabis. The offences were of low objective seriousness and the court had to consider Mason's disability and mental health issues, which impacted their decision-making ability. The primary legal issue was determining an appropriate sentence, taking into account these mitigating factors, and whether a custodial sentence was warranted or if community-based alternatives would be more suitable.

The court examined the principles of sentencing, which require consideration of the offender's culpability, the need for denunciation, and the potential for rehabilitation. Given the low objective seriousness of the offences, the court assessed whether a custodial sentence was necessary or if non-custodial options, such as good behaviour orders and recognisance release orders, could effectively address the sentencing objectives while accommodating Mason's disabilities and mental health issues. The court needed to balance the need for deterrence and public protection with the principles of proportionality and the rehabilitative potential of community-based sentences.

After careful consideration of the evidence and the mitigating factors, the court determined that a custodial sentence was not warranted. Instead, the court imposed a combination of good behaviour orders and a recognisance release order. This decision recognised the low culpability of the offences, the presence of mitigating factors, and the need to provide Mason with an opportunity for rehabilitation without resorting to imprisonment. The court concluded that this approach would adequately meet the objectives of sentencing while also considering Mason's disability and mental health.

The final orders included the imposition of several good behaviour orders, prohibiting Mason from engaging in certain activities and requiring compliance with specific conditions. Additionally, Mason was released on recognisance, subject to regular reporting requirements and compliance with the terms of the good behaviour orders. This outcome reflected the court's balanced approach to sentencing, taking into account both the nature of the offences and the offender's personal circumstances.

Orders