AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 11 December 2023

R v Matthews

[2023] NSWDC 611

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences

Citation: R v Matthews [2023] NSWDC 611
Court: District Court of New South Wales
Date: 11 December 2023
Judge: Haesler SC DCJ

Background

The offender and the complainant were in a domestic relationship from 2017. Their first child was born in December 2019, and the complainant fell pregnant with their second child in October 2020. A pattern of serious violence by the offender against the complainant unfolded across late 2020 and 2021, occurring in the family home and in the presence of children.

In mid-July 2021, police issued Apprehended Domestic Violence Orders (ADVOs) against the offender. Despite those orders, the violence continued. On the morning of the funeral for their stillborn child, the offender sexually assaulted the complainant on three occasions and then caused her actual bodily harm. After the funeral, the complainant lodged formal complaints with police and provided a detailed statement. The offender was arrested on 30 July 2021 and has remained in custody since that date.

While in custody, the offender made a large number of telephone calls urging the complainant to retract her allegations and cooperate in efforts to secure his release to parole. The complainant subsequently provided two statutory declarations to police purporting to retract her earlier allegations. The matters nonetheless proceeded to trial, and a jury found the offender guilty of nine counts on indictment. He was also convicted of a related summary offence of breaching an ADVO.

  • The appropriate individual sentences for each of the nine indictable convictions and one summary conviction, spanning assault occasioning actual bodily harm, intentional choking, sexual intercourse without consent, aggravated sexual intercourse without consent, and doing an act intending to pervert the course of justice
  • The weight to be given to aggravating factors, including that the offences were committed in a domestic violence context, in the family home, in the presence of a child, against a pregnant complainant, while subject to bail and an ADVO, and involved persistent offending
  • The weight to be given to mitigating factors, including the offender's family history and prosocial support
  • The appropriate aggregate sentence having regard to the totality principle (which requires that the overall sentence reflect the totality of the criminality without being crushing beyond what is warranted)
  • Whether special circumstances existed justifying a variation in the standard ratio between the non-parole period and the balance of term
  • The reliability and weight of a psychologist's report tendered on behalf of the offender, portions of which were contested

Decision

The court convicted the offender and proceeded to sentence. Haesler SC DCJ identified multiple serious aggravating features applying across the offending: it was committed in a domestic violence context, in the family home, in the presence of a child, against a pregnant complainant, while the offender was on bail and subject to an ADVO, and the conduct was persistent over an extended period.

In relation to the sexual offences (Counts 7, 8, and 9), the court found them to be among the gravest in the indictment. Count 9 was charged as aggravated sexual intercourse without consent because it occurred immediately after the offender had caused the complainant actual bodily harm. The court also treated the perverting the course of justice offence (Count 10) as a serious matter, reflecting sustained conduct by the offender in attempting to undermine the complainant's evidence from custody over many months.

The court declined to make a finding of special circumstances, given the length of the aggregate sentence. The psychologist's report tendered for the offender was treated with caution: the court noted that certain assertions in it were contradicted by other evidence and that controversial aspects of the report could not be proved to the requisite standard. Character references were also assessed critically, with some assertions found to be inconsistent with the evidence led at trial.

Applying the instinctive synthesis approach to sentencing (the method by which a court weighs all relevant factors together rather than applying a mechanical formula), the court imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 9 years. The sentence was backdated to 28 July 2021. The court expressly affirmed the obligations of the criminal law to vindicate victims of domestic and sexual violence, denounce such conduct, and protect the community against repetition.

Orders Made

  • Count 1 (Assault Occasioning Actual Bodily Harm): 1 year imprisonment
  • Count 2 (Assault Occasioning Actual Bodily Harm): 1 year and 6 months imprisonment
  • Count 4 (Assault Occasioning Actual Bodily Harm): 1 year and 6 months imprisonment
  • Count 5 (Intentional Choking): 2 years and 3 months imprisonment
  • Count 6 (Assault Occasioning Actual Bodily Harm): 1 year imprisonment
  • Count 7 (Sexual Intercourse without Consent): 4 years and 6 months imprisonment, non-parole period 3 years and 4 months
  • Count 8 (Sexual Intercourse without Consent): 6 years imprisonment, non-parole period 4 years and 6 months
  • Count 9 (Aggravated Sexual Intercourse without Consent): 7 years imprisonment, non-parole period 5 years and 3 months
  • Count 10 (Doing an Act to Pervert the Course of Justice): 3 years imprisonment
  • Summary matter (Breach of ADVO, pursuant to s 13 Crimes (Domestic and Personal Violence) Act): 12 months imprisonment
  • Aggregate sentence: 12 years imprisonment, non-parole period of 9 years, commencing 28 July 2021, with eligibility for parole consideration from 27 July 2030; balance of term of 3 years to expire 26 July 2033

Key Takeaways

  • The District Court applied an aggregate sentencing approach, indicating individual sentences for each count before imposing an overall term that reflected the totality of the criminality across ten offences spanning a period of sustained domestic violence.
  • Multiple aggravating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) were engaged simultaneously across several offences, including the domestic relationship, location in the family home, presence of a child, the complainant's pregnancy, and the offender's status on bail and subject to an ADVO.
  • Conducting sustained telephone contact from custody to persuade a complainant to retract police statements was treated by the District Court as a serious course of conduct warranting a three-year indicated sentence for perverting the course of justice.
  • Where a psychologist's report contains assertions that are contradicted by other evidence or that cannot be proved to the requisite standard, the sentencing court may decline to act on those contested aspects.
  • No finding of special circumstances was made, the court holding that the length of the aggregate sentence rendered such a finding inappropriate in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 37(1), 59, 61I, 61J(1), 319
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Munda v Western Australia [2013] HCA 38
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Ahmu v R; DPP v Ahmu [2014] NSWCCA 312
- Browning v R [2015] NSWCCA 147
- Cherry v R [2017] NSWCCA 150
- DH v R [2022] NSWCCA 200
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Harrigan v R [2005] NSWCCA 449
- Kochai v R [2023] NSWCCA 116
- Marinellis v R [2006] NSWCCA 307
- MRM v R [2015]