Massey v The Queen [1999] FCA 257

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

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY AG 85 of 1997

DISTRICT REGISTRY

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MATHEW MASSEY

Appellant

AND: THE QUEEN

Respondent

JUDGES: GALLOP, MATHEWS and MADGWICK JJ

DATE OF ORDER: 5 MARCH 1999

WHERE MADE: CANBERRA

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.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY AG 85 of 1997

DISTRICT REGISTRY

BETWEEN: MATHEW MASSEY

Appellant

AND: THE QUEEN

Respondent

JUDGES: GALLOP, MATHEWS and MADGWICK JJ

DATE: 5 MARCH 1999

PLACE: CANBERRA

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.