AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 4 October 2007

MATHESON, Scott Paul v. REGINA

[2007] NSWCCA 285

Also reported as 176 A Crim R 466
Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL LACK OF REASONS FOR NOT SETTING NON PAROLE PERIOD CUMULATION OF SENTENCES

Citation: Matheson v Regina [2007] NSWCCA 285
Court: New South Wales Court of Criminal Appeal
Date: 4 October 2007
Judge(s): Hodgson JA, Hislop J, Latham J

Background

The appellant was sentenced in the District Court on 19 January 2007 following guilty pleas to two separate offences. The first was larceny from a person at a pharmacy in May 2005, involving the theft of cold-and-flu tablets containing pseudoephedrine, a precursor used in the manufacture of amphetamine. The second was armed robbery at a loan office in July 2005, in which a co-offender entered the premises wearing a balaclava and carrying a sawn-off shotgun, struck a person on the head, and stole a jewellery tray worth $1,000. The appellant's role in both offences was as the getaway driver.

Marien DCJ sentenced the appellant to a fixed term of two years for the larceny offence, with 18 months of that term running cumulatively upon a four-year sentence (with a two-year, three-month non-parole period) for the armed robbery. The total effective sentence was five years and six months, with a non-parole period of three years and nine months, representing 68% of the full term.

The appellant sought leave to appeal on three grounds: the failure to give reasons for imposing a fixed term without a non-parole period on the larceny count, the extent of cumulation, and the alleged reliance on an irrelevant aggravating factor concerning the intended manufacture of drugs.

  • Whether the sentencing judge erred in law by failing to give reasons for not setting a non-parole period for the larceny offence, as required by s 45(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the degree of cumulation between the two sentences was excessive, given the similarities between the offences
  • Whether it was permissible to treat the appellant's intention to use the stolen tablets to manufacture amphetamine as an aggravating factor in sentencing for the larceny, given he had not been convicted of any drug manufacture offence

Decision

On the first ground, the Court accepted that the sentencing judge had technically erred by failing to explicitly record reasons for not setting a non-parole period, as s 45(2) mandates. However, the Court declined to intervene. It was plain from the sentencing remarks that the judge was focused on the totality of the sentence across both offences and the appropriateness of the overall non-parole period. Setting a separate non-parole period for the shorter, first-to-run sentence would have been superfluous and potentially confusing. The Court also noted that s 45(4) expressly provides that non-compliance with s 45(2) does not invalidate the sentence.

On cumulation, the Court found no error. While greater concurrency would have been within the sentencing judge's discretion, the two offences were distinct: they occurred seven weeks apart, involved separate victims, and took place at different locations. The extent of accumulation imposed was not shown to be outside the available range.

On the third ground, the Court rejected the argument that taking the appellant's drug-manufacturing intention into account breached the principle in The Queen v De Simoni (that an offender must not be punished for an offence of which they have not been convicted). The Court held that the intention to use the stolen tablets to manufacture illegal drugs was directly relevant to the criminality of the larceny itself. That intention fell within ss 21A(1)(c) and 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, which require the court to consider factors affecting the relative seriousness of the offence and whether it was part of planned or organised criminal activity. No error was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 45(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must record its reasons for declining to set a non-parole period. Failure to do so constitutes legal error, even if s 45(4) prevents that failure from invalidating the sentence.
  • The Court of Criminal Appeal confirmed that a technical breach of s 45(2) will not necessarily warrant appellate intervention, particularly where the sentencing judge demonstrably addressed the totality of the sentencing exercise.
  • Where two offences are factually distinct, separated by time, and involve different victims, the degree of accumulation is a matter of sentencing discretion. An accumulation that falls within available options will not be disturbed on appeal.
  • The De Simoni principle does not prevent a sentencing court from treating an offender's ulterior criminal intention as an aggravating factor, provided that intention bears on the relative seriousness of the offence charged rather than punishing the offender for an uncharged offence.
  • Sections 21A(1)(c) and 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 provide a statutory basis for treating planned criminality and offending with a serious ulterior purpose as aggravating features at sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 45
- Crimes Act 1900 (NSW), ss 94, 97(1)

Cases
- R v Hammoud [2000] NSWCCA 540
- R v Heikkinen [2006] NSWCCA 50
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Wilson [2005] NSWCCA 219
- The Queen v De Simoni (1981) 147 CLR 383