R v Mason (No 2)
[2019] ACTSC 173
•26 June 2019
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) for the minor theft, the maximum penalty is 50 penalty units and imprisonment for six months; and
(c) for the possession of cannabis, the maximum penalty, given the quantity of cannabis possessed by Mr Mason, is one penalty unit.
Facts
6. At the time of the trespass and theft offences Mr Mason was homeless and camping near the river. The offences were committed when Mr Mason, who conceded that he was keen to have a dog, entered the RSPCA premises in Weston and broke open a cage containing a dog.
7. The dog, which was the property of the RSPCA, then escaped from the cage and apparently accompanied Mr Mason to his campsite near the river where he “'hung around” until Mr Mason was arrested a day or so later after the second fire.
8. In the second fire, Mr Mason suffered serious burns. He was flown to Sydney for treatment and was remanded in custody when he returned to Canberra a couple of days later. He then spent around two months in the Alexander McConachie Centre before being released on bail.
Subjective and objective considerations
9. According to the evidence given in the trial, including from two psychiatrists, Mr Mason was apparently homeless largely as a result of mental illness, probably bipolar disorder, which he had suffered for some years. Some weeks before the trespass and theft he had suffered a manic episode as a result of which he had lost his job and been asked to leave the temporary accommodation, being the garage in his ex-wife's home, where he had been living for some time.
10. I understand that since Mr Mason's trial finished in late 2015, he has continued to receive treatment for his mental health. He has also suffered other physical problems including heart and liver problems. Mr Mason now has public housing in Wanniassa, is a patient with the National Disability Insurance Scheme, and relies on a disability pension.
11. Mr Mason is now 53. His criminal history is minor and irrelevant to the current offences. Since these charges were laid, he has been dealt with earlier this year for a repeat drink driving offence, but there has been no other offending.
12. I am satisfied that the objective seriousness of all the offences is low.
Sentence
13. Mr Mason, please stand. I record convictions on the three charges and sentence you as follows:
(a) For possession of cannabis, to a good behaviour order for six months from today.
(b) For the trespass offence, I make a recognisance release order requiring you to be of good behaviour for six months from today. The security sum is set at $10, but. I specify no pecuniary penalty or other conditions attached to that order.
(c) For the theft, I also order you to sign a good behaviour undertaking for six months from today.
14. In making these orders, I have noted the two months that you spent in custody, but consider that it would convey a false impression of the seriousness of the theft if I had imposed a term of imprisonment against which that time in custody could be set.
I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.
Associate:
Date:
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