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Supreme Court 22 May 2014

R v Matthews

[2014] NSWSC 608

Sexual offencesHomicide
CRIMINAL LAW SENTENCE MURDER LATE PLEA OF GUILTY WHERE OFFENDING OCCURRED IN 1992

Citation: R v Matthews [2014] NSWSC 608
Court: Supreme Court of New South Wales
Date: 22 May 2014
Judge(s): Bellew J

Background

The offender pleaded guilty on 3 February 2014 to the murder of a 39-year-old woman in the Royal National Park near Bundeena, committed on or about 1 February 1992. The victim's body was discovered by bushwalkers and showed signs of fatal head injuries inflicted with a rock, as well as sexual assault. The case remained unsolved for many years until advances in DNA technology in 2006 and 2011 identified the offender's DNA on samples taken from the deceased.

The offender had been due to stand trial jointly with a co-accused on the day the guilty plea was entered. The co-accused subsequently went to trial but was acquitted by direction. The offender's sentencing also took into account a Form 1 offence of sexual intercourse without consent, which the court was asked to consider alongside the murder charge.

The offender's arrest did not occur until August 2011, nearly two decades after the killing. His sentence was backdated to that date by agreement between the parties.

  • What sentencing practice applied to a murder committed in 1992, and how did that differ from current sentencing law?
  • Whether the standard non-parole period of 20 years for murder (introduced under the Crimes (Sentencing Procedure) Act 1999) applied to an offence committed before that legislation was enacted.
  • What weight should be given to the offender's late guilty plea, personal circumstances, and the Form 1 sexual offence when determining the appropriate sentence?
  • How to apply comparable sentencing decisions from the early 1990s while still achieving individual justice for this offender.

Decision

Bellew J confirmed that where an offence was committed in 1992, the sentencing court must apply the sentencing practice that prevailed at that time, not current sentencing norms. Both parties agreed this approach, established in R v MJR, would produce a lower sentence than would result from more recent sentencing practice. The standard non-parole period of 20 years for murder had no application here because it post-dated the offending.

His Honour had regard to three Court of Criminal Appeal decisions from the early 1990s (R v McDonald, R v Webster, and R v Hungerford) as guideposts for the sentencing range applicable at the time of the offending. Bellew J noted, however, that comparisons between cases must be approached with caution: no two cases are identical, and the overriding aim of sentencing is to render individual justice through the proper exercise of sentencing discretion.

The agreed facts established that the offender, together with at least two other males, drove the victim to a remote location, sexually assaulted her, and then participated in her murder by striking her on the head with a rock. The offender's DNA was recovered from the deceased, and a former partner gave evidence that he had admitted the killing and demonstrated the manner in which it was carried out. His Honour took into account the late guilty plea, the Form 1 sexual offence, and factors relating to the offender's rehabilitation prospects.

Orders Made

  • The offender was convicted of the murder of the deceased.
  • Non-parole period of 16 years and 3 months imprisonment, commencing 2 August 2011 and expiring 1 November 2027.
  • Additional term of 5 years and 3 months imprisonment, commencing 2 November 2027 and expiring 1 February 2033.
  • Total sentence of 21 years and 6 months imprisonment.
  • The offender will be eligible for parole on 2 November 2027, with the sentence expiring on 1 February 2033.

Key Takeaways

  • Where an offence was committed before current sentencing legislation took effect, the sentencing court must apply the sentencing practice that prevailed at the time of the offending, even if the resulting sentence is lower than what modern practice would produce.
  • The standard non-parole period of 20 years for murder under the Crimes (Sentencing Procedure) Act 1999 does not apply to offences committed before that Act commenced.
  • Comparable decisions from the relevant era may guide the sentencing exercise, but the Court of Criminal Appeal has confirmed that no two cases are the same and the ultimate goal is individual justice, not mechanical comparison.
  • A guilty plea entered on the eve of trial may still attract some discount, even where it is characterised as late, depending on the full circumstances of the offending and the offender's personal situation.
  • Advances in DNA technology can bring cold cases to prosecution decades after the offence, but those evidentiary developments do not alter the principle that the sentence must be calibrated to the law and practice in force at the time of the original conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368
- R v McDonald (NSWCCA, unreported, 18 August 1994)
- R v Webster (NSWCCA, unreported, 15 July 1991)
- R v Hungerford (NSWCCA, unreported, 15 December 1993)
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Todoroski [2010] NSWCCA 75
- RLS v R [2012] NSWCCA 236
- R v Paterson (No 4) [2014] NSWSC 162