AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 22 May 2015

Matheson v R

[2015] NSWCCA 108

Homicide
CRIMINAL LAW SENTENCE APPEAL MURDER WHETHER “MULDROCK ERROR” HAD OCCURRED OFFENDER SENTENCED IN APRIL 2006 MENTAL ILLNESS ISSUES

Citation: Matheson v R [2015] NSWCCA 108
Court: Court of Criminal Appeal
Date: 22 May 2015
Judge(s): Hoeben CJ at CL, Hall J, McCallum J (unanimous)

Background

The applicant was convicted by jury in December 2005 of the murder of an 18-year-old woman and was sentenced in April 2006 to a non-parole period of 18 years with a balance of term of 9 years, producing a head sentence of 27 years. The murder occurred in November 2003 after the victim ended her friendship with the applicant and he discovered she was engaged to another man. Evidence established that the applicant purchased a cricket bag shortly before the murder, and the victim's decomposed body was later found inside it, with cable ties around her neck indicating strangulation.

The applicant had a significant psychiatric history, including a brother who died by suicide at 17 while suffering from schizophrenia, parents with psychiatric conditions, and his own hospitalisation following the discovery of the victim's body. Disagreement between expert psychiatrists about his precise diagnosis and its bearing on his conduct was a feature of the sentencing proceedings.

The applicant sought an extension of time to appeal against sentence, arguing that the primary judge had fallen into what is known as "Muldrock error": applying a two-stage sentencing approach that gave the standard non-parole period (20 years for murder) determinative rather than merely indicative weight.

  • Whether an extension of time for leave to appeal against sentence should be granted
  • Whether the primary judge committed Muldrock error by adopting a two-stage sentencing approach and treating the standard non-parole period as having determinative significance
  • Whether, if Muldrock error was established, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912
  • What the appropriate sentence was upon re-sentencing

Decision

The Court granted the extension of time and found that Muldrock error had occurred. The primary judge had sentenced in April 2006, before the High Court's decision in Muldrock v R [2011] HCA 39 clarified that the standard non-parole period is a legislative guideline rather than a fixed reference point, and that a two-stage sentencing approach (first fixing the appropriate non-parole period, then considering whether to depart from the standard) was erroneous. The sentencing remarks disclosed that this flawed methodology had been applied.

On the question of re-sentencing under s 6(3) of the Criminal Appeal Act 1912, the Court was required to exercise its sentencing discretion independently. Hoeben CJ at CL assessed the objective seriousness of the offence as falling in the more serious range, taking into account the planning and premeditation involved and the brutal and cruel method of killing. The Court found that psychiatric statistical data about median sentence lengths did not assist, given the unique circumstances of the case.

Despite confirming the high level of culpability, the Court concluded that a head sentence of 27 years was excessive in the circumstances. The non-parole period of 18 years was left undisturbed, reflecting the Court's view that this component remained appropriate. However, the head sentence was reduced to 25 years by shortening the balance of term from 9 years to 7 years.

Orders Made

  • Extension of time for the application for leave to appeal against sentence granted
  • Leave to appeal against sentence granted and the appeal allowed
  • Sentence imposed by Mathews AJ on 28 April 2006 quashed
  • In lieu of the original sentence, the applicant was sentenced to imprisonment with a non-parole period of 18 years commencing 19 May 2004 and expiring 18 May 2022, with a balance of term of 7 years expiring 18 May 2029

Key Takeaways

  • Muldrock error was established where a sentencing judge in 2006 applied a two-stage approach that treated the standard non-parole period for murder as having determinative rather than merely indicative weight.
  • An extension of time to appeal may be granted in appropriate cases where the applicant was sentenced before the relevant High Court clarification, even where a significant period has elapsed.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must independently exercise its sentencing discretion on re-sentence rather than simply correcting the primary judge's error.
  • Establishing Muldrock error does not automatically produce a reduction in both the non-parole period and the head sentence. Here, the non-parole period was confirmed at 18 years while only the balance of term was reduced.
  • Statistical data on median sentence lengths across comparable offences will not necessarily assist where the individual circumstances of an offender's conduct and psychiatric condition are sufficiently distinctive.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Achurch v R (No 2) [2013] NSWCCA 117; 84 NSWLR 328
- Abdul v R [2013] NSWCCA 247
- R v Di Cianni and Pintabona [2013] NSWSC 1328
- R v Lane [2013] NSWSC 1808