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District Court 11 February 2022

R v Matthew Schuman

[2022] NSWDC 165

Theft & propertyDomestic & family violencePublic order & justice offences

Citation: R v Matthew Schuman [2022] NSWDC 165
Court: District Court of New South Wales
Date: 11 February 2022
Judge: Bright DCJ

Background

The offender, a 36-year-old man, appeared for sentencing on seven offences spanning nearly a decade, from 2013 to 2020. Each victim had previously been in a domestic relationship with him. The offending involved four separate former partners, identified in the judgment by initials.

The conduct ranged from covert surveillance using listening devices and GPS trackers, to breaking and entering a former partner's home and stealing items, to stalking and intimidating two other former partners. The offender also contravened an Apprehended Violence Order (AVO) in relation to one victim.

The offender pleaded guilty on 10 September 2021 and had been in custody since 7 July 2020. Bright DCJ sentenced him on an aggregate basis, backdating the sentence to the date custody commenced.

  • What individual sentences were appropriate for each offence, having regard to the objective seriousness of the conduct, the offender's personal circumstances, and the 25% guilty plea discount?
  • Whether special circumstances existed justifying a reduction in the non-parole period and an increase in the parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How an aggregate sentence should be structured across seven principal offences (plus Form 1 matters) involving multiple victims over a prolonged period?

Decision

Bright DCJ sentenced the offender on six principal offences and one offence on a section 166 certificate, with two additional Form 1 matters taken into account. The offences included possessing a surveillance device intending unlawful use, using a listening device to record conversations without being a party to them, entering a dwelling with intent to commit larceny, stalking or intimidating two former partners, using a tracking device to determine the location of a person, and contravening an AVO.

A guilty plea discount of 25% was applied to all offences, reflecting the timing of the plea. The court found special circumstances, which under the Crimes (Sentencing Procedure) Act 1999 permits the non-parole period to be reduced below the standard statutory ratio, with the corresponding parole period extended. The District Court was satisfied that an extended period of supervision on parole would assist the offender's rehabilitation.

The individual terms assessed ranged from six months (stalking of one victim) to two years and seven months (stalking of another victim, taking into account Form 1 property damage and identity fraud matters). These were then structured into an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999, which allows a court to impose a single aggregate term rather than a series of cumulative or concurrent sentences.

On the question of the listening device offence relating to victim OG, the court could not establish beyond reasonable doubt that the device was placed inside her home, only that it was on her property in sufficiently close proximity to record her private conversations. This factual limitation was noted in the sentencing assessment.

Orders Made

  • Aggregate sentence of five years and six months imprisonment, backdated to 7 July 2020, expiring 6 January 2026.
  • Non-parole period of three years and eight months, expiring 6 March 2024, with first eligibility for parole on 6 March 2024.
  • Special circumstances found, resulting in a reduced non-parole period and extended parole period.
  • The offender was convicted of each offence.

Key Takeaways

  • An aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 requires the court to set out, separately, the individual terms it would have imposed for each offence before constructing the aggregate term.
  • Where agreed facts do not establish beyond reasonable doubt a particular circumstance of aggravation (here, that a listening device was placed inside a dwelling), the court does not take that circumstance into account in sentencing.
  • Special circumstances can justify a longer parole period where the court is satisfied that extended post-release supervision will assist rehabilitation, even where the offending is serious and involves multiple victims.
  • A 25% guilty plea discount was applied across all offences, consistent with the timing of the plea and the principles in Cahyadi v R [2007] NSWCCA 1 and related authorities.
  • Offending that involves covert surveillance of multiple former domestic partners over many years, using commercially available tracking and listening technology, will be treated as serious across multiple categories of the Surveillance Devices Act 2007 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 111(1), 148, 192K, 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 53A
- Surveillance Devices Act 2007 (NSW), ss 7(1)(a), 9(1)(b), 13(1)(c)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
- Cahyadi v R [2007] NSWCCA 1
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
- Bugmy v R [2013] HCA