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District Court 2 July 2019

R v Matthews

[2019] NSWDC 342

Assault & violenceFirearms & weapons

Citation: R v Matthews [2019] NSWDC 342
Court: District Court of New South Wales
Date: 2 July 2019
Judge: Bennett SC DCJ

Background

The offender, a 29-year-old man, pleaded guilty to attempting to cause grievous bodily harm with intent, contrary to sections 33(1)(b) and 344A of the Crimes Act 1900. The offence carried a maximum penalty of 25 years' imprisonment. The offender had been released on parole only approximately 40 days before committing the offence, and was also subject to a community treatment order at the time.

On 12 July 2018, the offender approached a uniformed police officer standing outside Eastwood Police Station and struck at him three times with a 30-centimetre knife. The officer deflected or blocked the first two blows and adopted a defensive position for the third. The entire sequence was captured on closed-circuit television. The offender had no prior interaction with the victim officer and said nothing before attacking him.

A Form 1 offence was also before the court. On a separate occasion, while being transported in a police vehicle to Burwood Local Court, the offender attempted to strike a Corrective Services officer in the head with his elbow, narrowly missing. That offence, assault of a law enforcement officer under section 60A(1) of the Crimes Act 1900, was taken into account in the sentencing for the principal offence.

  • What sentence was appropriate for the principal offence of attempted grievous bodily harm with intent, given the objective seriousness and the offender's personal circumstances?
  • Whether a standard non-parole period applied to an attempt (inchoate) offence under the Crimes (Sentencing Procedure) Act 1999.
  • What weight to give to the Form 1 offence, and how it should increase the sentence for the principal offence.
  • When the sentence should commence, given the offender was on parole (not yet formally revoked) at the time of the offence and had been in custody since arrest.
  • How the offender's mental health, substance use, and capacity for rehabilitation affected the weight given to the various sentencing purposes, particularly general deterrence.

Decision

The District Court found that no standard non-parole period applied because the charge was an attempt, which is an inchoate offence. The standard non-parole period specified for the complete offence under the Crimes (Sentencing Procedure) Act 1999 was therefore irrelevant to the sentencing exercise.

On the Form 1 offence, the court followed the guidance in Attorney-General's Application No 1 of 2002 [2002] NSWCCA 518 and determined that the sentence for the principal offence required an appropriate increase to reflect the additional misconduct. The increase was framed around the need for greater weight on personal deterrence and retribution, given the offender had committed two separate assaults on law enforcement officers.

Regarding commencement date, the court accepted the defence submission and commenced the sentence on 12 July 2018, the date of arrest. The court drew on Callaghan v R [2006] NSWCCA 58, noting that parole revocation had not yet been formally confirmed by the State Parole Authority, and that even upon revocation it could not be assumed parole would not have been granted at some later point. The court found that commencing the sentence on a later date risked impermissible double-counting.

The offender's mental health was a significant feature of the sentencing. The court accepted that his condition and related substance use bore upon the weight given to general deterrence, denunciation, and accountability, limiting the extent of each. The court acknowledged the need to protect the community and to facilitate rehabilitation, including treatment compliance. A 25% discount for the utility of the guilty plea was applied to the sentence that would otherwise have been imposed.

Orders Made

  • The offender was convicted of the principal offence.
  • Non-parole period of 4 years and 6 months, commencing 12 July 2018 and expiring 11 January 2023.
  • Balance of sentence of 3 years, commencing 12 January 2023 and expiring 11 January 2026.
  • Total sentence: 7 years and 6 months (inclusive of the 25% guilty plea discount).
  • The Form 1 offence was certified as taken into account.

Key Takeaways

  • A standard non-parole period does not apply to an inchoate (attempt) offence under Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999, even where one is prescribed for the completed offence.
  • Where a Form 1 offence is taken into account, the sentence for the principal offence must be increased to reflect the additional misconduct, with particular attention to personal deterrence and retribution for all offending.
  • Commencing a sentence from the date of arrest, rather than a later date, was appropriate in circumstances where the offender's parole revocation had not been formally confirmed, and where a later commencement date risked double-counting the fact of conditional liberty.
  • The District Court held that the offender's mental health and the connection between that condition and the offending reduced, but did not eliminate, the weight given to general deterrence, denunciation, and accountability in the sentencing calculus.
  • Courts have consistently treated knife attacks as offences warranting firm punishment, and the use of a knife in an unprovoked attack on a uniformed police officer on duty was treated as a serious aggravating feature.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 60A(1), 344A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 37; Part 4 Division 1A

Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Callaghan v R [2006] NSWCCA 58
- De La Rosa [2010] NSWCCA 194
- Engert (1995) 84 A Crim R 67
- Hemsley [2004] NSWCCA 228
- King v The Queen [2010] NSWCCA
- Muldrock v Queen [2011] HCA 39
- Nowak v R [2008] NSWCCA
- Qutami [2001] NSWCCA 353
- R v Cramp [2004] NSWCCA 264
- R v De Simoni (1981) 147 CLR
- R v Falls [2004] NSWCCA 335
- R v Youkhana [2004] NSWCCA 412
- Shine v R [2016] NSWCCA 149
- Tepania v Queen [2018] NSWCCA 247
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14