FEDERAL COURT OF AUSTRALIA

Massey v The Queen [1999] FCA 257

MATHEW MASSEY v THE QUEEN

AG 85 OF 1997

GALLOP, MATHEWS & MADGWICK JJ

5 MARCH 1999

CANBERRA

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The head sentence of four years’ imprisonment to date from the expiration of the sentence that the appellant was then serving is confirmed.

3.                  The non-parole period to commence on 11 September 1995 is varied to the effect that the non-parole period expires on 10 February 1999.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

GALLOP J:

1                     This is an appeal against the severity of sentence imposed by Miles CJ in the Supreme Court of the Australian Capital Territory on 26 June 1997.  The appellant was sentenced to four years imprisonment to date from the expiration of the sentence that he was then serving and a non-parole period commencing on 11 September 1995 to expire on 10 August 1999 was fixed.  As the Crown has pointed out in its submissions, the effect of that sentence was that the appellant was ordered to serve a minimum of two further years in custody.  The appellant has what could only be described as a very bad criminal record for one as young as him.

2                     At the time of sentencing he was already serving a term of imprisonment, being a term imposed when he was re-sentenced to three years and 11 months from 11 September 1995 with a new non-parole period of one year 11 months.  And so the effect of the sentence on 26 June 1997 was that he was going to be five years in custody before being eligible for parole on 10 August 1999. 

3                     The appellant has appeared in person and addressed us about his progress in rehabilitation of himself, particularly over the last 12 months.  On any view of what he has told us from the bar table, none of which is disputed by the Crown, he has made wonderful progress of his own rehabilitation and has demonstrated from what he said from the bar table that he is very determined to stay on the right side of the law from now on.

4                     For myself, I was very impressed with his presentation.  What is particularly significant is that he has family support when he finally earns his parole. Family support is the core of rehabilitation if the prisoner lets it operate to its full extent.  Furthermore, he proposes to play football at which he is, he tells us, fairly adept.  And all in all he wants to get into a trade of tiling and carry on with his rehabilitation. 

5                     The Crown put it rather well that his Honour’s sentence was justifiable in every respect, taking the view that he did of the prospects of rehabilitation of the appellant at that time and he structured a sentence which was designed to ensure that the appellant served the appropriate period before earning parole and was on parole for an appropriate period after having earned that parole to ensure that his rehabilitation was complete as best a sentencing judge can do.

6                     We have the benefit of the actual record of rehabilitation that the appellant has achieved, something, of course, that his Honour could not totally foresee.  Having regard to that, my own view is that the appellant has earned the opportunity to demonstrate on parole that he is indeed rehabilitated and I would propose that the sentence of the Chief Justice be varied so that the non-parole period be fixed at 18 months.  That would mean that the non-parole period would have expired on 10 February 1999.  That, I think, is appropriate in all the circumstances.  The appellant will still have to go before a parole board and demonstrate to the parole board that he is worthy of parole.  He seems to think that he will have no difficulty in that respect. 

7                     The order I would make is that the appeal be allowed, that the head sentence be confirmed and that the non-parole period be varied from two years to 18 months.

MATHEWS J:

8                     I agree with the orders proposed by the presiding judge.  It is a significant matter in my view that at the time of the sentencing of the appellant by his Honour, he was only 21 years old, and indeed, at the time when he first entered into the total sentence, part of which he is now serving, he was barely 18 years old.  I agree that the head sentence imposed by his Honour was entirely appropriate, but as to the non-parole period, in my view the DPP has expressed it well himself that his Honour, in setting a non-parole period of an additional two years, did not allow the flexibility in the event that the appellant’s rehabilitation would be as it has turned out, it seems to me, as effective as might have been hoped at that time.  Accordingly, bearing in mind the youth of the appellant at that time and the need for flexibility in the sentence so far as his rehabilitation prospects are concerned, I agree with the orders proposed by Gallop J.

MADGWICK J:

9                     I too agree in the orders proposed and I agree with the presiding judge that the appellant appears to have made very impressive and determined progress along the road to rehabilitation.  It must, however, be recognised that the Crown was in no position to test that material, nor were we, and there may well be another side to the picture that we do not know about.  When Miles CJ sentenced the appellant, his Honour’s gloom about the appellant’s prospects for rehabilitation would appear to have been well justified.  Nevertheless, prognostications about the future are notoriously difficult to make, and particularly in the case of such a young offender for whom such a lengthy period of actual imprisonment was in prospect.  In my view, the principle of totality required that, as Mathews J has said, flexibility be built in so that if the appellant were minded and able to do better by way of rehabilitation than the best rational view at the time would have suggested, nevertheless the community and the appellant should be able to have the advantage of his earlier release if that rehabilitation were appropriately demonstrated to a parole board.

Associate:

Dated:              March 1999