R v Masters

[2000] NSWCCA 146

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     R v MASTERS [2000]  NSWCCA 146

FILE NUMBER(S):
60218/99

HEARING DATE(S):           10 April 2000

JUDGMENT DATE:            10/04/2000

PARTIES:
Regina
Catherine Masters

JUDGMENT OF:      Hulme J Dowd J    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        98/11/0805

LOWER COURT JUDICIAL OFFICER:     Viney DCJ

COUNSEL:
Crown: MC Marien
In person

SOLICITORS:
Crown:  SE O'Connor
In person

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

No: 60218/99

HULME J
DOWD J

Monday, 10 April 2000

REGINA -v-Christine MASTERS

JUDGMENT

1     HULME J: On 22 April 1999, the applicant for leave to appeal adhered to an earlier plea of guilty to two charges, one of breaking and entering a dwelling house and stealing property from that place and secondly, using an offensive weapon, namely a knife, with intent to prevent her apprehension.

2     The applicant had entered the dwelling and moved, obviously with a view to removal, some of the property of the occupants.  She was confronted by an occupant and some other people, told a false story about why she was there and when she was told she was to remain until the persons called the police, she grabbed a knife from the kitchen and threatened to use it.  She then ran away, still with the knife in her possession but finally she was tackled and apprehended.

3     Viney QC DCJ was also asked to take into account four further matters.  One was having goods in custody, a camera; second was a common assault charge and the third and fourth matters were for stealing from David Jones and Grace Brothers respectively.  The applicant was 23 years of age at the time and his Honour recorded she had a serious criminal record for one so young.  It certainly answered that description.

4     It is clear from that record that the applicant had been given numerous chances for offences in the past.  His Honour recorded that the applicant had a serious drug problem and that her performance in response to chances which she had been given, such as Community Service orders or supervision, had been unsatisfactory.

5     The maximum penalty for breaking, entering and stealing was, at the time, 14 years penal servitude and the maximum penalty for the offence of using an offensive weapon to prevent apprehension, 12 years.  The applicant had rendered herself liable to both of these penalties.

6     The sentence his Honour imposed was, on the first count, a minimum term of 18 months dating from 14 March 1999 and an additional term of two years commencing on 14 September 2000 and his Honour recorded that in arriving at that sentence he had taken into account the matters on the Form 1.  On the second count his Honour imposed a fixed term of imprisonment of nine months.

7     It should be recorded that the offences on the Form 1 which his Honour took into account themselves carry significant penalties and the sentence which his Honour imposed, when one recognises that it was really for five separate offences, could not be regarded as in any way excessive, either in itself or particularly when one has regard to the applicant's previous criminal record.  As I said earlier today, there comes a stage when the courts just cannot permit criminals to continue to disregard their obligations to society.  It is, I think, fair to say that if the applicant continues in the way she has, she will spend a great deal of the rest of her life in gaol. However, it should be recognised, as his Honour recognised, that the applicant was starting to take control of her own life and clearly if she does so it is likely to be significantly better than it has been to date.

8     In support of the appeal, the applicant drew to the court's attention that she is already serving a six months sentence for breach of parole and as I read it, suggested that the matters with which we are concerned should not have been made, as it were, cumulative upon that earlier term.  She also drew attention to the fact that she had been off drugs for a period of six months and suggested that her barrister did not do what she asked him to do.  In the submissions before us, she said that she now had been clean for two years one month and six days.  In that respect I would record that she is much to be congratulated but this court is a court of error.  We do not sit, as it were, to see simply whether we think the trial Judge's sentence was the one which we would have imposed or whether things might have been done differently.  Before this court can interfere, it must be shown that the trial Judge had gone wrong in some fashion.

9     Against the statutory penalties to which I have referred, the longest of which as I have said is 14 years, the penalty of three and a half years, the greatest part of which is by way of an additional term, is not high and in light of the applicant's record, cannot be regarded as in any sense erroneous.

1. It is not clear to me in what respects the applicant is saying that her barrister did not do what he was told but when I look at the result compared with what the result might have been, it does not seem to me that the applicant has much to complain of in that result.  It is clear that his Honour did have regard to subjective matters operating in the applicant's favour.

2. But for one matter, it seems to me the court should grant leave to appeal but dismiss the appeal.  The one reservation to which I refer was a direction by his Honour that the applicant be admitted to parole at the expiration of her minimum term.  It would seem that that was an order which his Honour was not empowered to make, given that the total sentence which he imposed was one of three and a half years.  However, the order was not, in any sense, disadvantageous to the applicant and on an application for leave to appeal by her it does not seem to me that this court should make an order which might disadvantage her.  I need not embark further on the question of whether it would  or would not.

3. Accordingly, the orders I propose are that leave to appeal be granted but the appeal be dismissed.

4. DOWD J:  I agree with the proposed orders and his Honour the presiding Judge's reasons therefor.

5. HULME J:  The order of the court is that the application for leave to appeal is allowed but the appeal is dismissed.

LAST UPDATED:    03/05/2000