AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 17 September 2014

Matthews v R

[2014] NSWCCA 185

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL COMMENCEMENT DATE OF SENTENCE COMMENCEMENT DATE CONTRARY TO STATUTE SLIP RULE

Citation: Matthews v R [2014] NSWCCA 185
Court: Court of Criminal Appeal, New South Wales
Date: 17 September 2014
Judges: Macfarlan JA, Fullerton J, Hamill J (unanimous)

Background

The applicant pleaded guilty in the Local Court to two counts of dishonestly obtaining a financial advantage by deception, involving the use of other people's charge cards to purchase goods at a shopping centre. The total value of goods obtained across the two principal offences and two additional matters taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without separate conviction) was approximately $1,245.

The District Court sentenced the applicant on 13 November 2013. The sentencing judge imposed two terms of 2 years and 4 months, largely concurrent but accumulated by three months, producing a total effective sentence of 2 years and 7 months with a non-parole period of 2 years.

The following day, an error was identified: the commencement date of the first sentence was unlawful under section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which restricts when a new sentence may commence relative to an existing one. When the judge corrected the commencement date, the practical effect was to increase the total effective sentence to approximately 2 years, 9 months and 13 days, and to extend the accumulation between the two sentences from 3 months to over 5 months.

  • Whether the sentencing judge's correction of the unlawful commencement date, which had the effect of increasing the total effective sentence, was itself an error.
  • Whether the corrected sentences offended the totality principle established at the original sentencing.
  • Whether the original sentences were manifestly excessive for unsophisticated fraud offences of relatively low value.
  • Whether special circumstances warranting a longer parole period should have been found, given the accumulation of the new sentences upon a pre-existing sentence.

Decision

On the first ground, the Court held that the correction of the commencement date was problematic because it increased the effective sentence beyond what the sentencing judge had determined was appropriate on 13 November 2013. The Court noted that the applicant's counsel at first instance had not consented to the increase, merely acknowledging it was technically available as a matter of statutory construction. The Court accepted that whether such a course was open, giving proper effect to principles of totality and finality, was a different question from whether it was technically permissible under section 43 of the Crimes (Sentencing Procedure) Act.

On manifest excess, the Court found the original sentences were disproportionate to the nature of the offending. The offences were described as unsophisticated, and the amounts involved were modest. Applying the principle from Veen v The Queen (No 2) and related authorities, the Court concluded that the sentences did not reflect appropriate proportionality.

On special circumstances, the Court observed that accumulation of sentences upon a pre-existing custodial term can itself constitute special circumstances, warranting a reduction in the non-parole period relative to the head sentence. The sentencing judge had not made such a finding, and the Court found this was an error given that the period on parole would have been only approximately 13% of the total effective sentence when the pre-existing sentence was taken into account. The Court found special circumstances and imposed a non-parole period of 12 months on each count, representing half of each 2-year head sentence.

The Court quashed the District Court sentences and resentenced the applicant to 2 years on each count, accumulated by 3 months, producing a total effective sentence of 2 years and 3 months with a total effective non-parole period of 1 year and 3 months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • District Court sentences quashed.
  • For sequence 1: non-parole period of 12 months commencing 29 May 2014, expiring 28 May 2015, with a balance of term of 12 months.
  • For sequence 2: non-parole period of 12 months commencing 29 August 2014, expiring 28 August 2015, with a balance of term of 12 months expiring 28 August 2016.
  • The applicant is to be released to parole at the expiration of the non-parole period for sequence 2.

Key Takeaways

  • Correcting an unlawful sentence under section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not automatically authorise an increase in the total effective sentence; doing so can constitute error where it conflicts with the sentencing court's existing findings on totality.
  • The principle of finality has practical weight at sentencing: once a judge has determined what is appropriate as a matter of totality, adjustments made to correct technical errors should not unilaterally expand the punishment imposed.
  • Accumulation of new sentences upon a pre-existing custodial sentence may itself constitute special circumstances, and a failure to make such a finding without reasons may itself be an error on appeal.
  • Proportionality remains a governing principle: sentences for unsophisticated, low-value fraud must bear a reasonable relationship to the seriousness of the actual offending conduct.
  • Section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) imposes strict limits on when a new sentence may be directed to commence, and those limits are not overridden simply because a pre-existing sentence affects parole eligibility.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 43, 47

Cases
- Achurch v The Queen [2014] HCA 10
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Ghamaraoui v R [2009] NSWCCA 111
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Perry v R [2006] NSWCCA 351; (2006) 166 A Crim R 385
- R v Hawkins (1989) 45 A Crim R 430
- R v Simpson (1992) 61 A Crim R 58
- Thompson-Davis v R [2013] NSWCCA 75
- Veen v The Queen (No 2) (1988) 164 CLR 465