Matondo v The Queen

[2021] SASCA 78

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MATONDO v THE QUEEN

[2021] SASCA 78

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice Doyle, the Honourable Justice Livesey and the Honourable Justice Bleby)

11 August 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

The applicant was convicted of four offences, each arising out of a single incident. 

The sentencing judge imposed a head sentence of four years four months and 25 days imprisonment, and fixed a non-parole period of two years and three months.

The applicant sought permission to appeal from a single Judge.  His sole complaint was that the sentencing judge had failed to take into account his cooperation with the authorities and the hardship he was likely to experience in custody as a result of that cooperation.  That application was refused.

The applicant has renewed his application for permission to appeal before the Court of Appeal.

Held (per the Court), refusing the application for permission to appeal:

1.      There is no arguable merit in the proposed appeal.

MATONDO v THE QUEEN
[2021] SASCA 78

Court of Appeal – Criminal:    Doyle, Livesey and Bleby JJA

1. THE COURT (ex tempore):     This is a renewed application for permission to appeal against sentence. 

2. The applicant was convicted of four offences: namely, one count of aggravated serious criminal trespass in a place of residence, two counts of aggravated robbery and one count of aggravated theft.  Each of the four offences arose out of a single incident on 19 November 2019, when the applicant and three co-accused forced their way into a house and stole items of property from three residents, two of whom were home at the time. 

3. The sentencing judge imposed a single sentence.  In so doing, he identified a notional starting point of five years six months imprisonment, which he reduced by 20 per cent on account of the applicant's pleas of guilty, giving a sentence of four years four months and 25 days imprisonment.  His Honour fixed a non-parole period of two years and three months.

4. The applicant sought permission to appeal from a single Judge.  That application was refused.

5. The applicant has renewed his application for permission to appeal before this Court.  The only complaint is that the sentencing judge failed to take into account his cooperation with the authorities and the hardship he was likely to experience in custody as a consequence of that cooperation. 

6. Properly understood, the cooperation relied upon by the applicant was no more than admissions made to the police in the course of a record of interview.  While this extended to the volunteering of some information as to the circumstances of the offending and the involvement of others, this was information that was obviously already known to the police.  The sentencing judge made express reference in his sentencing remarks to both the fact of this cooperation and the applicant's consequential fears for his safety.  In our view there is no arguable merit in the applicant's proposed appeal. 

7. To the extent that the applicant's submissions raised other ancillary complaints, for the reasons set out in the respondent's submissions, we do not consider that they alter the analysis.  Despite counsel for the applicant having said all that could reasonably be said in favour of the application, it is without merit.

8. The renewed application for permission to appeal is refused.