Matheson, Scott Paul v Regina
[2007] NSWCCA 285
•4 October 2007
Reported Decision: 176 A Crim R 466
New South Wales
Court of Criminal Appeal
CITATION: MATHESON, Scott Paul v. REGINA [2007] NSWCCA 285 HEARING DATE(S): 4 October 2007 JUDGMENT OF: Hodgson JA at 1; Hislop J at 23; Latham J at 24 EX TEMPORE JUDGMENT DATE: 4 October 2007 DECISION: 1. Leave to appeal granted. 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW- Appeal - Application for leave to appeal against sentence - Lack of reasons for not setting non-parole period - Cumulation of sentences - Relevance of intention with which offence committed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, ss.21A, 45 CASES CITED: R v Hammoud [2000] NSWCCA 540
R v Heikkinen [2006] NSWCCA 50
R v Thomson; R v Houlton [2000] NSWCCA 309, 49 NSWLR 383
R v Wilson [2005] NSWCCA 219
The Queen v De Simoni (1981) 147 CLR 383PARTIES: Scott Paul Matheson - applicant
Regina - opponentFILE NUMBER(S): CCA 2007/3221 COUNSEL: Mr. G.D. Wendler for applicant
Mr. M. Barr for opponentSOLICITORS: Van Houten Law, Parramatta for applicant
S. Kavanagh, Solicitor for DPP for opponentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0290 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 19 January 2007
CCAP 2007/3221
Thursday 4 October 2007HODGSON JA
HISLOP J
LATHAM J
1 HODGSON JA: On 19 January 2007, the applicant was sentenced by Marien DCJ for two offences in respect of which he had pleaded guilty.
2 On 18 September 2006, the applicant had pleaded guilty to a charge that he, on 23 May 2005 at Wamberal in the State of New South Wales, did steal from a person a quantity of Codral and Sudafed tablets, the property of a person trading as Wamberal Pharmacy. This was an offence under s.94 of the Crimes Act 1900, carrying a maximum penalty of 14 years’ imprisonment.
3 On 16 August 2006, the applicant had pleaded guilty to a charge that he, on 15 July 2005 at Charmhaven in the State of New South Wales, did rob a person of certain property, namely a display tray containing assorted jewellery, the property of another person, whilst being armed with an offensive weapon, namely a shotgun. This was an offence under s.97(1) of the Crimes Act, carrying a maximum penalty of 20 years’ imprisonment.
4 For the earlier offence, the sentencing judge sentenced the applicant to a fixed term of two years imprisonment to commence on 9 November 2006 and expire on 8 November 2008.
5 For the later offence, he sentenced the applicant to four years' imprisonment commencing 8 May 2008 and expiring on 7 May 2012 with a non-parole period of two years, three months to commence on 8 May 2008 and expire on 7 August 2010.
6 Accordingly, the total effective sentence was imprisonment for five years, six months to commence on 9 November 2006 and expire 7 May 2012 with a non-parole period of three years and nine months to commence 9 November 2006 and expire on 7 August 2010.
7 The applicant seeks leave to appeal on these sentences.
8 The applicant's role in both offences was as driver of a get-away car.
9 On the earlier occasion the applicant had driven the co-offender to and from a pharmacy, and the co-offender had entered the pharmacy, confronted a 15-year-old employee of the pharmacy and taken about ninety boxes of Codral and Sudafed tablets from the pharmacy.
10 On the later occasion the applicant had driven a different co-offender to Charmhaven Loan Office. The co-offender had entered the office wearing a balaclava and carrying a sawn-off shotgun, struck one of the persons on the head with a shotgun, wounding him and had taken a tray of jewellery valued at $1,000. The applicant knew the co-offender was in possession of the shotgun, but the sentencing judge accepted that he did not know definitively until after the robbery that it was loaded. The co-offender was charged with armed robbery causing wounding, but the applicant was charged with armed robbery simpliciter, and it was not suggested that it was part of the joint enterprise that violence of any nature be used in the execution of the robbery.
11 At the time of both offences the applicant was subject to the conditions of an eighteen month s.9 good behaviour bond imposed for an offence of maliciously destroying property committed on 14 May 2004. When he committed the later offence, he was on bail for the earlier offence.
12 In relation to both offences the sentencing judge found the applicant was entitled to a discount for the utilitarian value of the plea of guilty towards the top of the range identified by the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] NSWCCA 309, 49 NSWLR 383; and entitled to a further reduction by reason of remorse and contrition. In relation to the earlier offence, he found the applicant was entitled to a discount for assistance and offer of assistance to authorities. The sentencing judge found special circumstances, in particular that this would be the applicant's first custodial sentence and the applicant's prospect of rehabilitation. The effective overall non-parole period was 68% of the effective full term.
13 The applicant relies on three grounds of appeal and the judgment will set out the grounds.
- 1. That the District Court erred in law by failing to give reasons for imposing a fixed sentence for the offence of larceny from the person and further erred in its discretion by directing that 18 months of the sentence for larceny from the person be cumulative upon the sentence for armed robbery;
2. That the sentence imposed for the offence of larceny from the person was in all circumstances manifestly excessive;
3. That the District Court erroneously took into account irrelevant aggravating matters concerning the offence of larceny from the person in particular, "the offence was planned as part of a larger criminal enterprise to manufacture amphetamines,"
14 In relation to ground 1, the applicant relies on section 45 of the Crimes (Sentencing Procedure) Act 1999 which is as follows:
- 45 Court may decline to set non-parole period
(1) When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so:
- (a) because of the nature of the offence to which the sentence relates or the antecedent character of the offender, or
(b) because of any other penalty previously imposed on the offender, or
(c) for any other reason that the court considers sufficient.
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.
15 Mr Wendler, for the applicant, submitted that the sentencing judge was in error in not giving reasons why he did not set a non-parole period for the stealing offence, and he also submitted that the significant identity between the two offences suggested one course of criminality requiring greater concurrency. In his written submissions, he referred to the cases of R v Hammoud [2000] NSWCCA 540 and R v Heikkinen [2006] NSWCCA 50 at [14]. In oral submissions, Mr Wendler put that the judge had not taken into account the elements of similarity between the offences, namely that in each case the applicant was the driver of a get-away car, both offences were drug-motivated and they were committed within a short period of time.
16 In my opinion, the sentencing judge was in error in that s.45(2) does require that reasons for not setting a non-parole period be explicitly set out. However in my opinion, this is not an error that could justify intervention of the Court of Criminal Appeal in this case, because it is plain that the sentencing judge was directing his attention to the total effect of the sentences for both offences and the appropriateness of the non-parole period for that totality. In those circumstances, to set a separate non-parole period for the shorter sentence, that was to take effect first, could be seen as a superfluity that could be productive of confusion. That does not mean that the section should not be complied with. The section is mandatory in its terms. However it does, in my opinion, mean that it is not appropriate for the Court of Criminal Appeal to intervene, particularly having regard to the provisions of s.45(4).
17 On the question of concurrency, it would have been within the sentencing judge's sentencing options to have provided for greater concurrency; but in circumstances where there were two distinct offences separated by seven weeks, with separate sets of victims, in my opinion it can't be said that the extent of accumulation was an error justifying intervention: see R v Wilson [2005] NSWCCA 219 at [37]-[38].
18 In relation to ground 2, I see no basis for any claim that the sentence for the stealing offence was manifestly excessive, whether considered in isolation or as part of the total sentence.
19 As for ground 3, Mr Wendler relied on the following passage in the sentencing remarks of the sentencing judge:
The offender's escapade into drug manufacture, however, did not end there. He states that on the next day or so he drove to Ultimo in Sydney where he bought equipment and chemicals totalling $1,178. Clearly they were purchased for the intended purpose of manufacturing amphetamine. There is no evidence before me, however, that anything further was done by the offender or Wells to manufacture illicit drugs.
Mr Day, who appears for the offender, concedes that the offender's state of mind in committing the offence, that is, to obtain these tablets for the purpose of manufacturing amphetamine is an aggravating factor. In other words, the purpose that the offender committed the offence was to commit a further and very serious criminal offence, namely the manufacture of prohibited drugs.Clearly, this offence was not an unplanned and spontaneous criminal act. The offence was planned as part of a larger criminal enterprise to manufacture amphetamine, however misguided that intention may have been.
This, in turn, requires reference to par.(c) of s.21A(1) and par.(n) of s.21A(2) of the Crimes (Sentencing Procedure) Act which provide to the effect that in determining the appropriate sentence for an offence, the Court is to take into account:
(n) the offence was part of a planned or organised criminal activity.(c) any other objective or subjective factor that affects the relative seriousness of the offence
20 Mr Wendler submitted in written submissions that the quoted passage disclosed error because the applicant stood to be sentenced for what he had done, not for what he might do in the future. Those written submissions suggest that Mr Wendler may be relying on the principle in The Queen v De Simoni (1981) 147 CLR 383, that no-one should be punished for an offence for which he/she has not been convicted. However, in oral submissions Mr Wendler rather emphasised the point that the sentencing judge's remarks could be seen as suggesting that the appellant was to manufacture drugs for commercial supply rather than merely as a rather unlikely scheme to manufacture drugs for his own use.
21 In my opinion, the sentencing judge did not proceed on the basis that any intended manufacture was for other than the applicant's own use. In my opinion also, for the sentencing judge to take into account that the intention of the applicant in stealing the tablets was to use them to manufacture illegal drugs, did not involve punishing the applicant for some offence of which he had not been convicted. Rather, this intention was relevant to the criminality of the offence for which he was convicted, and fell plainly within the paragraphs within section 21A referred to above.
22 For those reasons I propose the following orders:
- 1. Leave to appeal granted.
2. Appeal dismissed.
23 HISLOP J: I agree with Hodgson JA.
24 LATHAM J: I also agree.
25 HODGSON JA: Those are the orders of the Court.
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