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R v McMahon

R v McMahon

Case [2014] ACTSC 280 24 July 2014

Deferred sentence order

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Jason Andrew McMahon
Citation:	[2014] ACTSC 280
Hearing Date(s):	29 May 2014, 25 June 2014, 24 July 2014
DecisionDate:	24 July 2014
Before:	Refshauge J
Decision:	1. Jason Andrew McMahon be convicted of the offence of burglary on 14 May 1997. 2. Jason Andrew McMahon be convicted of the offence of theft on 14 May 1997. 3. Jason Andrew McMahon be convicted of the offence of burglary on 21 May 1997. 4. Jason Andrew McMahon be convicted the offence of damaging property on 21 May 1997. 5. I convict you of the offence of burglary on 23 May 1997. 6. Jason Andrew McMahon be convicted of the offence of damaging property on 23 May 1997. 7. Jason Andrew McMahon be convicted of the offence of burglary on 23 May 1997. 8. Jason Andrew McMahon be convicted of the offence of theft on 23 May 1997. 9. Jason Andrew McMahon be convicted of the offence of possessing stolen property on 28 May 1997. 10. Jason Andrew McMahon be convicted of the offence of failing to appear in accordance with your bail undertaking on 10 June 1998. 11. Jason Andrew McMahon be convicted of the offence of assault on 1 January 2008. 12. Jason Andrew McMahon be convicted of the offence of damaging property on 1 January 2008. 13. Jason Andrew McMahon be convicted of the offence of assault on 1 January 2008. 14. Jason Andrew McMahon be convicted of the offence of damaging property on 1 January 2008. 15. Jason Andrew McMahon not be sentenced for the offences of which he has been convicted at this time. 16. Jason Andrew McMahon be released on bail to appear for sentence on Tuesday 2 December 2014, with the following conditions: (a) That he be under the supervision of the Director-General or her delegate to comply with all reasonable directions of the person delegated to supervise him; (b) That until admitted to the rehabilitation program at Bennelong’s Haven, Kinchella, New South Wales, he reside at [Redacted]; (c) That by no later than 30 July 2014, he admit himself to the rehabilitation program at Bennelong’s Haven and remain in that program save for attendance at Court until it is completed; (d) That he obey all reasonable directions of the person in charge of the Program; (e) That he consent to the staff of Bennelong’s Haven providing any information about him and his progress in the Program as may be reasonably be required by the person delegated to supervise him; (f) That if he is not admitted to the Program, or is discharged from the program, he report within forty-eight hours to the Registrar of the Supreme Court of the ACT in person for a review of his bail; and (g) That he not drink alcohol or consume illicit drugs.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Judgment and Punishment – Sentencing – Sentencing for stale offences – Deferred sentence order – Burglary –…

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 McMahon

Details

AGLC: R v McMahon [2014] ACTSC 280
Case: [2014] ACTSC 280
Decision Date: 24 July 2014

CaseChat Overview and Summary

In the case of R v McMahon, the defendant, Jason Andrew McMahon, faced multiple charges spanning several years. The offences included burglary, theft, damaging property, assault, possessing stolen property, and failing to appear in court. The case was heard in the Supreme Court of the ACT, which was required to determine the guilt or innocence of McMahon on each of the charges and subsequently to decide on his sentencing.

The court had to navigate complex legal issues surrounding the admissibility and weight of evidence from different periods, as well as the applicability of deferred sentence orders. It needed to consider the principle of justice in light of the time elapsed between the offences and the present, the defendant’s criminal history, and his current circumstances, including his participation in a rehabilitation program. Furthermore, the court had to address the principle of double jeopardy and whether the defendant could be tried again for certain offences due to procedural errors in the initial proceedings.

The Supreme Court of the ACT found McMahon guilty on all charges. However, it deferred sentencing to allow McMahon to participate in a rehabilitation program at Bennelong’s Haven. The court set stringent bail conditions to ensure McMahon's appearance for sentencing and compliance with the program. The conditions included residence at a specified address, participation in the rehabilitation program, and abstaining from alcohol and illicit drugs. The court scheduled a review of his bail if he failed to adhere to the program requirements.

The final orders included convictions on all charges but deferred sentencing pending the completion of the rehabilitation program. McMahon was released on bail with conditions to appear for sentencing on a specified date. This decision highlights the court's approach to balancing justice and rehabilitation, particularly in cases involving repeat offenders and lengthy time spans between offences.

Orders

Orders of the court

1. Jason Andrew McMahon be convicted of the offence of burglary on 14 May 1997.

2. Jason Andrew McMahon be convicted of the offence of theft on 14 May 1997.

3. Jason Andrew McMahon be convicted of the offence of burglary on 21 May 1997.

4. Jason Andrew McMahon be convicted the offence of damaging property on 21 May 1997.

5. I convict you of the offence of burglary on 23 May 1997.

6. Jason Andrew McMahon be convicted of the offence of damaging property on 23 May 1997.

7. Jason Andrew McMahon be convicted of the offence of burglary on 23 May 1997.

8. Jason Andrew McMahon be convicted of the offence of theft on 23 May 1997.

9. Jason Andrew McMahon be convicted of the offence of possessing stolen property on 28 May 1997.

10. Jason Andrew McMahon be convicted of the offence of failing to appear in accordance with your bail undertaking on 10 June 1998.

11. Jason Andrew McMahon be convicted of the offence of assault on 1 January 2008.

12. Jason Andrew McMahon be convicted of the offence of damaging property on 1 January 2008.

13. Jason Andrew McMahon be convicted of the offence of assault on 1 January 2008.

14. Jason Andrew McMahon be convicted of the offence of damaging property on 1 January 2008.

15. Jason Andrew McMahon not be sentenced for the offences of which he has been convicted at this time.

16. Jason Andrew McMahon be released on bail to appear for sentence on Tuesday 2 December 2014, with the following conditions:

(a) That he be under the supervision of the Director-General or her delegate to comply with all reasonable directions of the person delegated to supervise him;

(b) That until admitted to the rehabilitation program at Bennelong’s Haven, Kinchella, New South Wales, he reside at [Redacted];

(c) That by no later than 30 July 2014, he admit himself to the rehabilitation program at Bennelong’s Haven and remain in that program save for attendance at Court until it is completed;

(d) That he obey all reasonable directions of the person in charge of the Program;

(e) That he consent to the staff of Bennelong’s Haven providing any information about him and his progress in the Program as may be reasonably be required by the person delegated to supervise him;

(f) That if he is not admitted to the Program, or is discharged from the program, he report within forty-eight hours to the Registrar of the Supreme Court of the ACT in person for a review of his bail; and

(g) That he not drink alcohol or consume illicit drugs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v McMahon [2014] ACTSC 280

Most Recent Citation

The Queen v Jason McMahon [2015] ACTSC 14

Cases citing this decision · 32 of 33 shown

Lyngstad v Cox
[2023] ACTSC 192

…McLeod v The Queen [2018] ACTCA 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Foster [2021] ACTSC 229 R v Griggs [2006] ACTCA 3 R v McMahon [2014] ACTSC 280 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v UG [2018] ACTCA 64; 14 ACTLR 70 SBT v Wright [2021] ACTSC 322; 17 ACTLR 137 Skeen v Bann…
R v Smith
[2022] ACTSC 288 Para 10

…gain, relevant factors have been established in various Court decisions. The most relevant matter is the value of the property taken: see R v McMahon [2014] ACTSC 280 at [94]–[95]. It is also relevant that it is associated with a burglary which, ordinarily, requires a consideration of concurrency, as explained in t…
R v Ruwhiu
[2022] ACTSC 290 Para 1

…oted that, ordinarily, the sentence for a theft associated with a burglary will be wholly or substantially concurrent with that burglary: R v McMahon [2014] ACTSC 280 at [94].…
R v Winters
[2022] ACTSC 371 Para 13

…The property stolen was not particularly substantial, though in both cases it was the subject of separate charges. As noted in R v McMahon [2014] ACTSC 280 and in many other decisions of this Court, the sentences for the burglary and the thefts committed at the same time will generally be concurrent. See also Dawso…
R v Montgomery
[2022] ACTSC 291 Para 14

…larly appropriate, there should be a significant concurrency between the sentences for the burglary and the associated theft, as noted in R v McMahon [2014] ACTSC 280 at [94].…
R v Bower
[2022] ACTSC 382 Para 1

…circumstance not identified here, the sentence is ordinarily made largely concurrent with the sentence imposed for the burglary offence: R v McMahon [2014] ACTSC 280 at [94].…
R v Bonfield
[2021] ACTSC 362 Para 1

…cohol, a serious matter for it is more fearful and threatening as it is likely to be impossible to reason with someone in that situation: R v McMahon [2014] ACTSC 280 at [89].…
R v Ware (No 2)
[2021] ACTSC 360 Para 1

…e relationship between the theft and burglary offences, where ordinarily there is at least substantial concurrency between the sentences: R v McMahon [2014] ACTSC 280 at [94].…
R v Weldon
[2021] ACTSC 348 Para 1

…e course of conduct and the commonality of some elements, the sentences for the two offences are usually wholly or partly concurrent: see R v McMahon [2014] ACTSC 280 at [94].…
R v Donnelly
[2021] ACTSC 336

…] ACTSC 144 R v Kristiansen [2015] ACTSC 159 R v Massey (No 3) [2021] ACTSC 156 R v Mathews [2020] ACTSC 364 R v McGrail [2016] ACTSC 141 R v McMahon [2014] ACTSC 280 R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 R v Roux (No 2) [2015] ACTSC 361 R v Seymour [2021] ACTSC 152 R v Sladic [2014] ACTSC 56 R v Steen [2015…
R v Antonovic (No 3)
[2021] ACTSC 338

…17] ACTSC 144 R v Massey ( No 1) [2020] ACTSC 256 R v Mathews [2020] ACTSC 364 R v McCurley [2016] ACTSC 219 R v McHughes [2021] ACTSC 92 R v McMahon [2014] ACTSC 280 R v Roux (No 2) [2015] ACTSC 361 R v Sharma [2016] ACTSC 180 R v Shrestha [1991] HCA 26; 173 CLR 48 R v Slattery [2021] ACTSC 154 R v White [2014] AC…
R v Foster
[2021] ACTSC 229 Para 1

…T) and renders Mr Foster liable to a maximum penalty of two years imprisonment, or a fine of $32,000, or both. I describe this offence in R v McMahon [2014] ACTSC 280 at [97] as follows:…
R v Hancock
[2021] ACTSC 52 Para 1

…glary, it is common practice for the sentence for that theft to be made largely concurrent with the sentence for the offence of burglary: R v McMahon [2014] ACTSC 280 at [94].…
R v Mathews (No 2)
[2021] ACTSC 185 Para 1

…or a sentence of theft to be wholly concurrent on the sentence for burglary during the commission of which the theft was also committed ( R v McMahon [2014] ACTSC 280 at [94]), there are exceptions and, indeed, as with all sentencing, there is no one correct sentence, only appropriate, adequate and just sentences (…
R v Slattery
[2021] ACTSC 154 Para 1

…tence for the offences of theft, especially given the amount involved in the theft, will, as is often the case for the reasons set out in R v McMahon [2014] ACTSC 280 at [94], be wholly concurrent. That is relevant when I take into account the minor thefts in the list of additional offences also.…
R v Mathews
[2020] ACTSC 364

…R v Hawkins [2015] ACTSC 333 R v Horan [2020] ACTSC 189 R v Horne [2017] ACTSC 36 R v Kaihea [2020] ACTSC 17 R v Mathews [2019] ACTSC 262 R v McMahon [2014] ACTSC 280 R v McMahon (No 2) [2017] ACTSC 299 R v Pahl [2017] ACTSC 68 R v Sila [2015] ACTSC 64 R v Taylor (No 2) [2019] ACTSC 377…
R v Pearson
[2020] ACTSC 375 Para 1

…As I said in R v McMahon [2014] ACTSC 280 at [89]:…
R v Bessant
[2020] ACTSC 365

…] ACTSC 83 R v Hawkins [2015] ACTSC 333 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v John [2017] ACTSC 144 R v Lockwood [2018] ACTSC 288 R v McMahon [2014] ACTSC 280 R v Thorne [2016] ACTSC 217 Saga v Reid and Collett [2010] ACTSC 59…
R v BC
[2019] ACTSC 233

…144 R v John (No 2) [2017] ACTSC 186 R v Lockwood [2018] ACTSC 288 R v Kristiansen [2017] ACTSC 292 R v Martin [2007] VSCA 291; 20 VR 14 R v McMahon [2014] ACTSC 280 R v McMahon (No 2) [2017] ACTSC 299 R v Meyboom [2012] ACTCA 48 R v Muell [2019] ACTSC 77 R v Osenkowski (1982) 30 SASR 212 R v Pahl (No 2) [2017] AC…
Dawson v The Queen
[2019] ACTCA 9 Para 1

…nce for an offence of theft that was committed in the course of a burglary is made concurrent with the sentence for the related burglary: R v McMahon [2014] ACTSC 280 per Refshauge J at [94]; Millard v The Queen [2016] ACTCA 14 at [56] (Refshauge, Penfold and North JJ).…
R v McMahon (No 2)
[2017] ACTSC 299 Para 1

…rred Sentence Order so that Mr McMahon could enter the residential drug rehabilitation agency, Bennelong's Haven, in New South Wales. See R v McMahon [2014] ACTSC 280 ( R v McMahon (2014) ).…
R v John
[2017] ACTSC 144 Para 1

…e of burglary and the theft committed as a consequence is likely to be largely, if not wholly, concurrent with the sentence for burglary: R v McMahon [2014] ACTSC 280 at [94].…
R v Forrest (No 2)
[2017] ACTSC 83 Para 1

…As with the relationship between burglaries and associated thefts, this would ordinarily lead to a significant degree of concurrency. See R v McMahon [2014] ACTSC 280 at [94].…
R v Horne
[2017] ACTSC 36 Para 1

…the sentence for the more serious offence adequately punishes the offender for the whole of the criminality committed, as I explained in R v McMahon [2014] ACTSC 280 at [94]. Of course, separate sentences must be imposed on each offence to meet proper sentencing principles: Pearce v The Queen (1998) 194 CLR 610 at…
R v Matthew Peter White (No 3)
[2016] ACTSC 285

…R v JM [2014] ACTSC 380 R v Kekalainen (No 2) [2015] ACTSC 369 R v Kristiansen [2015] ACTSC 159 R v Matthew Peter White [2015] ACTSC 254 R v McMahon [2014] ACTSC 280 R v McGrail [2016] ACTSC 142 R v Verdins [2007] VSCA 201 R v White [2014] ACTSC 158 Saga v Reid [2010] ACTSC 59…
R v Kelly
[2016] ACTSC 281 Para 1

…e same enterprise or otherwise. This is relevant here, for the aggravated burglary and the theft should have a degree of concurrency. See R v McMahon [2014] ACTSC 280 at [96].…
R v Massey (No 2)
[2016] ACTSC 278 Para 1

…ctor that must be taken into account: a delay is a matter that may mitigate the sentencing. See R v Todd [1982] 2 NSWLR 517 at 519-20 and R v McMahon [2014] ACTSC 280 at [98]-[106].…
R v Ngerengere (No 2)
[2016] ACTSC 155 Para 1

…the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise. Thus, as I have noted in R v McMahon [2014] ACTSC 280 at [94], often a sentence of burglary will be wholly concurrent with a sentence for the theft committed at the same time unless, for example, there w…
Millard v The Queen
[2016] ACTCA 14 Para 1

…Thus, while the sentence for the theft offence will commonly be concurrent with the sentence for the burglary offence (as explained in R v McMahon [2014] ACTSC 280 at [94]), there would be good grounds for a degree of cumulation of the sentence for the offence of aggravated burglary. Any reduction in the sentence f…
R v Hart
[2016] ACTSC 16 Para 1

…I explained in the R v McMahon [2014] ACTSC 280 at [98]-[107] how such delay can be taken into account. The reasons for taking such a matter into account are summarised by the New South Wales Court of Criminal Appeal in Blanco (1999) 106 A Crim R 303 at 306; [16] as follows:…
Hall v CL
[2015] ACTSC 286 Para 1

…d a very common situation that the sentences for burglary and the theft committed at the same time are almost always made concurrent. See R v McMahon [2014] ACTSC 280 at [94].…
The Queen v Jason McMahon
[2015] ACTSC 14 Para 1

…es, the personal circumstances of Mr McMahon and some of the relevant principles, in relation to the matters involving him are set out in R v McMahon [2014] ACTSC 280. I do not need to repeat what I there said. In summary I then made a deferred sentence order and granted Mr McMahon bail to attend at a drug rehabili…

View all 33 citing cases →

Cases cited in this decision · 10 of 10 shown

Wickey v McVicar
[2012] ACTCA 38 Para 1

…Similarly, the Court of Appeal reduced a sentence of three years for burglary to two years and six months in Wickey v McVicar [2012] ACTCA 38 and a sentence of three years and two months to two years in Richards v The Queen [2012] ACTCA 10.…
Love v The Queen
[2012] ACTCA 8 Para 1

…rs and eleven months’ imprisonment, with the majority of sentences between twelve months and eighteen months’ imprisonment. In Love v The Queen [2012] ACTCA 8, the Court of Appeal accepted that current sentencing practice accorded with this approach. The Court said (at [13]), that a table produced to the Court…
Richards v The Queen
[2012] ACTCA 10 Para 1

…ary to two years and six months in Wickey v McVicar [2012] ACTCA 38 and a sentence of three years and two months to two years in Richards v The Queen [2012] ACTCA 10.…
R v Sparks; R v D Stracey; R v P Stracey
[2010] NSWSC 1512 Para 1

…e still discounted the leniency that can be afforded where the delay is caused by the offender. See R v Whyte (2004) VR 3397 at 4.4; [24], R v Sparks [2010] NSWSC 1512 at [50].…
Ursino v Read
[2005] ACTSC 106 Para 1

…justice system. The prevalent and consequent expense occasioned by such offences as well as the seriousness led Crispin J to suggest in Ursino v Read [2005] ACTSC 106 at [12] that “in the absence of any significant mitigating factors, custodial sentences should be expected for offences of [failing to appear in answ…
Regina v The Queen
[2004] NTCCA 9 Para 1

…In Regina v The Queen (2004) 149 A Crim R 583, this approach was applied even though the offender had escaped lawful custody and committed the further offences whilst at large as a result.…
R v Whyte
[2004] VSCA 5 Para 1

…e rehabilitation has been achieved, the courts have still discounted the leniency that can be afforded where the delay is caused by the offender. See R v Whyte (2004) VR 3397 at 4.4; [24], R v Sparks [2010] NSWSC 1512 at [50].…
Osland v The Queen
[1998] HCA 75 Para 1

…d with the others to the commission of the offence of burglary and, being present at its commission, is liable as a principal. See Osland v The Queen (1998) 197 CLR 316 at 342.…
Mill v The Queen
[1988] HCA 70 Para 1

…ppeal in R v Todd has said that the delay in sentencing must be taken into account. That sentiment was approved by the High Court in Mill v The Queen (1988) 166 CLR 59 at 64.…
Barker v The Queen
[1983] HCA 18 Para 1

…ant. That amounts in law to the trespass which is a necessary element of the offence of burglary as confirmed by the High Court in Barker v The Queen (1983) 153 CLR 338. Clearly, Mr McMahon agreed with the others to the commission of the offence of burglary and, being present at its commission, is liable as a princip…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
102, 113, 128, 26, 99 6 mentions (from Para 1)
Bail Act 1992 (ACT)
49 2 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
7 2 mentions (from Para 1)
Criminal Code 2002 (ACT)
403(1) 2 mentions (from Para 1)