R v Masters

[1998] QCA 126

COURT OF APPEAL

[1998] QCA 126

FITZGERALD P McPHERSON JA SHEPHERDSON J

CA No 21 of 1998
THE QUEEN
v.

BRADLEY KEVIN MASTERS	Applicant
BRISBANE ..DATE 18/03/98
JUDGMENT
180398 T1/KG4 M/T COA52/98

THE PRESIDENT: The applicant, Bradley Kevin Masters, seeks leave to appeal against a sentence of imprisonment imposed by the District Court of Brisbane on 29 January 1998 in respect of two offences to which the applicant pleaded guilty, one of entering a dwelling house with intent to commit an offence and one of stealing.

The offences occurred on 14 January 1997 when the applicant stood look out for an associate who entered a suburban house in Moorooka and stole a number of compact discs, an undisclosed sum of money, a cheque book and a bag in which the items were removed. The property was recovered but the primary offender was not apprehended.

I say the primary offender in the sense of the offender who entered the house. The applicant was intercepted by police as he walked away from the premises. He had been observed by a watchful neighbour.

He was sentenced to 12 months' imprisonment in respect of the first offence with a recommendation that he be released on parole after three months, and to three months' imprisonment for the second offence. It is accepted that the sentences were to be served concurrently. As of today, he has served about half of the non-parole period.

The relevant factors before the sentencing Judge were his pleas of guilty, although only on the morning on the

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trial and after an earlier committal hearing; his youth, he was 20 years' old at the time of the offences and 21 at the conviction; and his family circumstances and responsibilities, including the fact that he has two young children and a defacto spouse.

Against that is the circumstance, that notwithstanding his youth, the applicant has been convicted and sentenced for a significant number of similar offences of dishonesty - about 28 charges in all - and he has previously been sentenced to imprisonment. He had a term of 18 months of which he served eight months.

He was released in May or June 1996 about six months before the present offences. Prior to turning 18, he also had been before the Court as a juvenile a number of times - also, it was said, without gaining the opportunity of probation or other community orders.

Indeed, this was the principal point which was urged on behalf of the applicant against the seriousness of his continued involvement in dishonesty. It was pointed out that prior to receiving his first custodial offence in 1995 at the age of 18, he had never received a community based order.

The sentencing Judge stated that after weighing all the circumstances, he was endeavouring to be lenient and as

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I say, despite the late plea of guilty, he made a recommendation for consideration for earlier parole.

The principal submission now advanced for the applicant is that he should be given a community based order in substance to take account of the fact that he had never previously had that leniency or the benefit of such an order.

In my opinion, while it might have been appropriate that he should have such an order at an early stage and certainly when he was a youthful offender prior to turning 18 - a child - there is nothing that can be done about that at this point in his offending career. The fact is that he has previously been imprisoned and despite that imprisonment, he has again offended.

In the circumstances, I can see no error in the sentencing Judge's discretion. I refuse the application for leave to appeal.

McPHERSON JA: I agree.

SHEPHERDSON J: I agree.

THE PRESIDENT: The application is refused.

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