Matheson, Scott Paul v Regina - [2007] NSWCCA 285

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 383

PARTIES: Scott Paul Matheson - applicant
Regina - opponent

FILE NUMBER(S): CCA 2007/3221

COUNSEL: Mr. G.D. Wendler for applicant
Mr. M. Barr for opponent

SOLICITORS: Van Houten Law, Parramatta for applicant
S. Kavanagh, Solicitor for DPP for opponent

LOWER 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

HODGSON JA
HISLOP J
LATHAM J
Thursday 4 October 2007

MATHESON, Scott Paul v. REGINA

Judgment

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWCCA 285
Decision Date: 4 October 2007

CaseChat Overview and Summary

The case involves Scott Paul Matheson, who was convicted of drug trafficking and firearm offences. The appeal concerns the sentencing imposed by the court, specifically the decision not to set a non-parole period and the cumulation of sentences. Matheson sought leave to appeal against the severity of his sentence, arguing that the lack of reasons for not setting a non-parole period was problematic. The central legal issues revolved around the judicial process in sentencing, the appropriateness of cumulative sentences, and the relevance of the intention behind the commission of the offences.

The court examined whether the sentencing judge provided adequate reasons for not setting a non-parole period, which is a critical component in assessing the proportionality of the sentence. It also considered whether the cumulation of sentences for multiple offences was justified and whether the intention behind the offences could influence the sentence. The court held that the sentencing judge did provide sufficient reasons for not setting a non-parole period, and the cumulation of sentences was appropriate given the nature and seriousness of the offences. Additionally, the court found that the intention with which the offences were committed was relevant but did not necessarily alter the severity of the sentence imposed.

Matheson's application for leave to appeal was dismissed. The court concluded that the reasons given for the sentencing decisions were sufficient, and the cumulation of sentences was justified. The intention behind the offences, while relevant, did not warrant a different outcome in this case. Consequently, the appeal was unsuccessful, and the original sentence stood affirmed.

Orders