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Court of Criminal Appeal 18 October 2007

R v Matthews

[2007] NSWCCA 294

Assault & violenceTheft & property
CRIMINAL LAW CROWN APPEAL ON SENTENCING WHETHER SENTENCE MANIFESTLY INADEQUATE PERIODIC DETENTION WHETHER COURT SHOULD INTERVENE

Citation: R v Matthews [2007] NSWCCA 294
Court: NSW Court of Criminal Appeal
Date: 18 October 2007
Judge(s): McClellan CJ at CL, Barr J, Bergin J

Background

The respondent pleaded guilty in the District Court to one count of aggravated robbery with corporal violence and one count of aggravated assault with intent to take and drive a conveyance in company, arising from an early-morning attack on a taxi driver in Sydney in April 2006. The offending involved choking the driver, demanding and stealing between $170 and $200, forcing him from his own vehicle, and driving the taxi away. The taxi was later found in a damaged condition.

Judge Flannery SC sentenced the respondent to concurrent terms of imprisonment to be served by way of periodic detention, with concurrent non-parole periods of 12 months. The total effective sentence was 27 and a half months. The respondent was 23 years old at the time of the offences, had a troubled background including the early loss of his father, a history of alcohol and cannabis abuse, and prior convictions including common assault and driving offences.

The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act 1912, arguing the sentences were manifestly inadequate and that the respondent should not have been permitted to serve them by way of periodic detention.

  • Whether the sentences imposed were manifestly inadequate for the offences of aggravated robbery and aggravated assault with intent to take and drive a conveyance in company
  • Whether the respondent's total sentence should have exceeded three years, which would have disentitled him to serve it by way of periodic detention
  • Whether, even if the sentences were manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and re-sentence

Decision

Bergin J (with whom McClellan CJ at CL and Barr J agreed) found that the sentences were manifestly inadequate. Her Honour concluded that the non-parole periods should have been accumulated to some degree, and that application of totality principles would have produced a total sentence exceeding three years, thereby disqualifying the respondent from serving his sentence by way of periodic detention.

Nonetheless, the Court exercised its discretion to dismiss the appeal rather than intervene. By the time of the appeal, the respondent had been released from full-time custody, was actively serving his sentence by way of periodic detention, had given up alcohol, had his gambling under reasonable control, was attending counselling, and was holding down stable employment and impressing his employer. He had also expressed genuine remorse.

Bergin J held that re-sentencing at that stage would inevitably result in a full-time custodial sentence, and that imposing such a sentence on a person already well advanced in rehabilitation would be inappropriate. The purposes of sentencing, her Honour found, were best served by dismissing the appeal, notwithstanding the manifest inadequacy of the original sentences.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • A Crown appeal against sentence will succeed in establishing manifest inadequacy without necessarily resulting in resentencing: the Court of Criminal Appeal retains a residual discretion to dismiss such appeals where re-sentencing would produce an unjust outcome.
  • In dismissing the appeal, the Court gave significant weight to rehabilitation that had occurred in the period between sentencing and the appeal hearing, including stable employment, cessation of alcohol use, counselling engagement, and demonstrated remorse.
  • Where concurrent non-parole periods produce a total sentence that falls below the three-year threshold for periodic detention eligibility, and accumulation was warranted on the facts, the sentencing court may be found to have erred even if each individual sentence is not grossly disproportionate in isolation.
  • The purposes of sentencing identified in the Crimes (Sentencing Procedure) Act 1999, including rehabilitation, can in appropriate circumstances outweigh the court's conclusion that a sentence was manifestly inadequate when the discretion to re-sentence is being exercised.
  • Compliance with periodic detention and engagement with rehabilitation programs post-sentence are factors that courts may consider when weighing whether to intervene in a Crown appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 95(1), 154C(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Mirza v R [2007] NSWCCA 248
- Mulato v R [2006] NSWCCA 282
- Pearce v The Queen (1994) 194 CLR 610
- R v Barker; R v Gibson [2006] NSWCCA 20
- R v Dang [2005] NSWCCA 430
- R v Fernando [2002] NSWCCA 28
- R v Henry (1999) 46 NSWLR 346
- R v Hernando (2002) 136 A Crim R 451
- R v Way (2004) 60 NSWLR 168