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Court of Criminal Appeal 10 March 2008

R v Matthews

[2008] NSWCCA 54

Assault & violenceTheft & property
SENTENCE CROWN APPEAL EXAMINATION DETERMINATION

Citation: R v Matthews [2008] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 10 March 2008
Judge(s): Mason P, Mathews AJA, Latham J

Background

The respondent pleaded guilty in the District Court to aggravated break, enter and commit a serious indictable offence (armed robbery) under s 112(2) of the Crimes Act 1900, with the aggravating circumstance being that he acted in company. The offence was a home invasion in the early hours of the morning, during which four men broke into a dwelling, terrorised a couple and their infant child, brandished a firearm, inflicted physical violence on the male victim, and stole cash and valuables worth approximately $2,650.

At the sentence hearing before Moore ADCJ, the respondent gave evidence that contradicted the factual basis of his guilty plea. Specifically, he denied knowledge that any co-offender was carrying a firearm. The sentencing judge nonetheless proceeded to impose a sentence on the basis of that evidence, arriving at a non-parole period of 18 months with a balance of term of 2 years and 3 months.

The Crown appealed on the ground that the sentence was manifestly inadequate. In the course of considering that appeal, the Court of Criminal Appeal identified a more fundamental problem: the respondent's evidence at the sentence hearing had effectively traversed his plea of guilty, and the judge had sentenced him on a factual basis inconsistent with the conviction.

  • Whether the respondent's evidence at the sentencing hearing was inconsistent with his guilty plea, such that the sentencing judge proceeded on an erroneous factual basis.
  • Whether, in those circumstances, the Court of Criminal Appeal could finally dispose of the Crown's inadequacy appeal or was required to remit the matter to the District Court.
  • Whether the sentence of 18 months' non-parole period was manifestly inadequate for an offence of this nature and gravity.

Decision

Latham J (with whom Mason P and Mathews AJA agreed) held that the respondent's guilty plea to armed robbery necessarily carried one of two admissions: either that he personally was armed, or that he was a party to a joint criminal enterprise to commit armed robbery and knew a co-offender was armed. Either way, the plea required an admission of knowledge of the weapon. When the respondent gave evidence at the sentencing hearing denying that knowledge, he effectively traversed his own plea, and the sentencing judge erred by accepting that evidence and sentencing on that basis.

Because the sentence was imposed on a factually erroneous foundation, the Court of Criminal Appeal held it could not simply re-sentence the respondent. Instead, under s 12(2) of the Criminal Appeal Act 1912, the matter had to be remitted to the District Court for determination afresh by a different judge.

While declining to finally determine the Crown's inadequacy ground, the Court noted that the 18-month non-parole period was manifestly inadequate. Latham J observed that the sentencing judge's characterisation of the offence as below mid-range in objective gravity was difficult to reconcile with the circumstances: the offence involved careful planning, the use of disguises, a firearm, the targeting of a family including an infant and a pregnant woman, violence inflicted in their home at night, and commission while the respondent was on conditional liberty. The standard non-parole period of 5 years had not been adequately engaged with as a guideline, even accounting for the guilty plea.

Orders Made

  • The sentence imposed by Moore ADCJ on 9 October 2007 is set aside.
  • The matter is remitted to the District Court for expedited determination afresh by a different judge.

Key Takeaways

  • A guilty plea to armed robbery in company carries an inherent admission either of personal possession of a weapon or of knowledge that a co-offender was armed as part of the joint criminal enterprise; a defendant cannot later give evidence denying that knowledge without traversing the plea.
  • Where an offender traverses a plea during the sentencing hearing and the judge sentences on the erroneous basis, the resulting sentence cannot stand and must be set aside.
  • In those circumstances, the Court of Criminal Appeal is not in a position to finally determine a Crown inadequacy appeal; remittal to the District Court under s 12(2) of the Criminal Appeal Act 1912 is the appropriate remedy.
  • The standard non-parole period functions as a guideline or benchmark that a sentencing court must engage with meaningfully, even when reducing the non-parole period below that benchmark in recognition of a guilty plea.
  • Aggravating features such as commission while on conditional liberty, the targeting of a family at home in the middle of the night, planning, disguises, actual violence, and the presence of a firearm can collectively elevate an offence above the mid-range of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) and s 112(3)
- Criminal Appeal Act 1912 (NSW), s 12(2)

Cases:
- R v Sharah (1992) 30 NSWLR 292
- Tangye (1997) 92 A Crim R 545
- Taufahema v The Queen [2006] NSWCCA 152; (2006) 162 A Crim R 152
- R v Falls [2004] NSWCCA 335
- Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
- Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208