Citation: Mattiussi v R [2023] NSWCCA 289
Court: Court of Criminal Appeal, New South Wales
Date: 24 November 2023
Judges: Adamson JA, Button J, R A Hulme AJ (judgment delivered by R A Hulme AJ)
Background
The applicant was convicted by jury in the District Court on two counts of sexual intercourse without consent and one count of intimidating a person with intent to cause fear of physical harm. The offences arose from events in April 2020 involving two complainants. On 9 September 2022, Abadee DCJ imposed an aggregate sentence of 7 years and 6 months' imprisonment with a non-parole period of 5 years, 3 months, and 2 days, dating from 9 March 2021.
The sentence was complicated by the applicant's custody history. He had been arrested and refused bail for the index offences on 15 May 2020. During that period in pre-sentence custody, he was also sentenced in the Local Court (on 16 September 2020) for separate offences, receiving an aggregate term of 14 months with a non-parole period of 9 months. The Crown Sentence Summary provided to the sentencing judge presented the pre-sentence custody figures in a format that the Court of Criminal Appeal later found to be unnecessarily complex and ultimately misleading.
The applicant sought leave to appeal on two grounds: that the sentencing judge failed to properly account for his pre-sentence custody when backdating the sentence, and that the judge failed to sufficiently vary the statutory ratio between the head sentence and non-parole period despite having found special circumstances.
Legal Issues
- Whether the sentencing judge erred by failing to adequately backdate the sentence to credit the applicant for all time spent in pre-sentence custody referable to the index offences, including the period during which he would otherwise have been on statutory parole for the Local Court matters.
- Whether the sentencing judge erred by finding special circumstances but then failing to vary the statutory ratio between the non-parole period and the head sentence to a sufficient degree.
Decision
Ground 1 (Pre-sentence custody): Upheld
The Court found that the applicant's time in custody during the period when he would otherwise have been on statutory parole for his Local Court sentences should have been counted as pre-sentence custody for the index offences. Because the applicant's parole had not been revoked, that parole period remained on foot and the time spent in custody during it was properly referable to the index offences. The failure to credit this period meant the sentencing exercise had miscarried.
The Court was also critical of both parties for presenting the sentencing judge with unnecessarily complicated custody information. Rather than providing a clear backdating date or range of dates, the Crown Sentence Summary expressed custody in years, months, and days across overlapping periods, which led the judge into error. The Court observed that the only information that truly matters is the date or dates to which a sentence should be backdated, and that presenting custody as a raw duration without reference to specific dates is unhelpful. The Court noted this practice should be avoided.
Ground 2 (Special circumstances and statutory ratio): Not upheld
The sentencing judge had found special circumstances "with some hesitation" and indicated the resulting adjustment to the non-parole period would be "small." The Court held this was a matter within the judge's sentencing discretion. The adjustment in the non-parole period reflected the judge's explicit stated intention, and no error was established on this ground.
Orders Made
- Leave to appeal granted and appeal allowed.
- The sentence imposed in the District Court on 9 September 2022 was quashed.
- In lieu, the applicant was sentenced to an aggregate term of imprisonment of 7 years and 6 months with a non-parole period of 5 years and 3 months.
- The sentence is taken to have commenced on 15 November 2020.
- The applicant is eligible for release on parole on 14 February 2026.
Key Takeaways
- Where an offender is in continuous custody and a Local Court sentence runs concurrently, time spent in custody during what would have been the statutory parole period for those Local Court matters counts as pre-sentence custody for the index offences, provided parole was not revoked.
- Both parties contributed to the sentencing error in this case by presenting pre-sentence custody information as a raw duration in years, months, and days rather than by reference to specific backdating dates. The Court of Criminal Appeal identified this as an unhelpful and problematic practice.
- The Court confirmed that the essential information a sentencing court needs is the date or range of dates to which a sentence should be backdated, not merely a numerical summary of time in custody.
- No error arises from a finding of special circumstances coupled with only a modest variation to the statutory ratio, where the sentencing judge has expressly stated that the adjustment will be small. That remains a matter of judicial discretion.
- In re-sentencing, the Court of Criminal Appeal reduced the non-parole period by 2 days (removing the original reference to days) and brought forward the sentence commencement date to 15 November 2020, reflecting proper credit for the applicant's pre-sentence custody.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 126 and 158
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 37, and 44
Cases:
- R v Mattiusi (No 3) [2022] NSWDC 406
- Aiken v R [2011] NSWCCA 208
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
- Caristo v R [2011] NSWCCA 7
- Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336
- Hamilton v R [2016] NSWCCA 59
- Karpatsis v R [2013] NSWCCA 111
- Kristensen v The Queen [2018] NSWCCA 189
- R v Deng [2015] SASCFC 176
- R v Ellmore [2002] NSWCCA 242
- R v Fitzgerald [2018] NSWCCA 170
- Salafia v R [2015] NSWCCA 141