Citation: Regina v Mathieson [2002] NSWCCA 97
Court: New South Wales Court of Criminal Appeal
Date: 27 March 2002
Judge(s): Sheller JA, Grove J, Simpson J (Simpson J delivered the leading judgment; Sheller JA and Grove J agreed)
Background
The respondent was a nineteen-year-old inmate at Mannus Correctional Centre, a minimum security facility, where he was serving an 18-month sentence and was entitled to release on parole in January 2002. On the evening of 3 August 2001, despite having signed an undertaking not to escape, he walked out of the centre with another inmate, initially intending to obtain cannabis and return. When police surrounded the facility, he fled and did not return.
Over the following three days while unlawfully at large, the respondent committed a series of serious offences in Wagga Wagga: he stole and deliberately destroyed a motor vehicle, participated with an accomplice in two street robberies of young women, threatened a young man with a wheel brace while demanding money, and broke into and stole from a residential property. He also used heroin purchased with robbery proceeds during this period. He was arrested in the early hours of 6 August 2001.
The respondent pleaded guilty in the District Court to all six charges. The sentencing judge imposed head sentences and then fixed a single non-parole period of 15 months across all offences other than escape. The Crown appealed, contending that the sentences were manifestly inadequate and that certain factual findings underpinning the sentences were unsupported by evidence.
Legal Issues
- Whether the factual findings made by the sentencing judge were supported by the evidence before the court
- Whether the overall sentences, and in particular the non-parole period of 15 months, were manifestly inadequate given the nature and number of the offences
- How the various sentencing discounts (for guilty plea, assistance to authorities, and the principle that resentencing following a Crown appeal should result in sentences at the lower end of the applicable range) should be applied on resentencing
Decision
Simpson J (with Sheller JA and Grove J agreeing) upheld the Crown appeal in part. The Court of Criminal Appeal found that the non-parole period of 15 months was not justified by the evidence and was manifestly inadequate when measured against the gravity of the offending, particularly the robbery offences committed against vulnerable victims in the early hours of the morning.
The Court accepted that a number of mitigating factors were relevant: the respondent's youth, his deeply troubled background (including the loss of his mother at age 14, institutionalisation, and significant drug dependency), his guilty pleas, his cooperation with authorities, and his admissions to police that went beyond what was necessary. Each of these factors reduced the sentences that would otherwise have been imposed.
The Court also applied the established principle that resentencing following a successful Crown appeal should produce sentences at the lower end of the otherwise applicable range. Applying a 20% reduction under s 23 of the Crimes (Sentencing Procedure) Act 1999 for the guilty pleas, the Court set head sentences of 3 years and 9 months for each of the three robbery-related offences (counts 3, 4 and 5), commencing 6 August 2001, with a non-parole period of one year and nine months on each. The sentences for escape, stealing a motor vehicle, and break, enter and steal were left undisturbed, those appeals being dismissed.
Orders Made
- Crown appeals against sentences on counts 1 (escape), 2 (steal motor vehicle), and 6 (break, enter and steal) dismissed
- Crown appeals against sentences on counts 3, 4, and 5 (robbery in company and assault with intent to rob whilst armed) allowed; those sentences set aside
- In lieu of the sentences set aside, the respondent resentenced on each of counts 3, 4, and 5 to a head sentence of 3 years and 9 months, commencing 6 August 2001, with a non-parole period of one year and nine months on each count
Key Takeaways
- A non-parole period fixed at 15 months across multiple serious offences, including robberies involving threats of violence against strangers, was found by the Court of Criminal Appeal to be manifestly inadequate and unsupported by the evidence before the sentencing court.
- Where a Crown appeal against sentence succeeds, resentencing should produce a result at the lower end of the range that would otherwise be appropriate, reflecting the principle against double punishment established in the case law.
- Discounts for guilty pleas, assistance to authorities, and relevant subjective circumstances (including youth, a troubled background, and drug dependency) operate cumulatively to reduce an otherwise applicable sentence, but do not displace the need for sentences that reflect the objective gravity of violent offending.
- Under s 254(1) of the Crimes (Administration of Sentences) Act 1999, a sentence is automatically extended by the period during which an offender is unlawfully at large, and under s 57 of the Crimes (Sentencing Procedure) Act 1999, a sentence for escape must commence from that extended release date.
- Factual findings made at sentencing must be supported by the evidence adduced; where they are not, those findings may be set aside on appeal and resentencing undertaken on a correct factual basis.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 50, 57
- Crimes (Administration of Sentences) Act 1999 (NSW), s 254(1)
Cases:
- R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Cartwright (1989) 17 NSWLR 243
- R v Pearce [1998] HCA 57; 194 CLR 610
- R v Ellis (1986) 6 NSWLR 603
- R v Cameron [2002] HCA 6 (14 February 2002)