Matthews v R - [2014] NSWCCA 185

Court of Criminal Appeal

New South Wales

Case Title: Matthews v R

Medium Neutral Citation: [2014] NSWCCA 185

Hearing Date(s): 8 September

Decision Date: 17 September 2014

Before: Macfarlan JA at [1];
Fullerton J at [2];
Hamill J at [3].

Decision:
(1) Application for leave to appeal granted.

(2) Appeal allowed.

(3) The sentences imposed in the District Court are quashed and in lieu thereof the offender is sentenced:
(a) In respect of sequence 1, to a non-parole period of 12 months commencing on 29 May 2014 and expiring on 28 May 2015 with a balance of term of 12 months.
(b) In respect of sequence 2, to a non-parole period of 12 months commencing on 29 August 2014 and expiring on 28 August 2015 with a balance of term of 12 months expiring on 28 August 2016

(4) The applicant is to be released to parole at the expiration of the non-parole period for sequence 2.

Catchwords: CRIMINAL LAW - SENTENCE - appeal - commencement date of sentence - commencement date contrary to statute - adjustment of sentence by sentencing Judge - slip rule - correction of sentence under s 43 Crimes (Sentencing Procedure) Act - increase of effective sentence in correcting sentence - error - principle of finality - maintenance of findings as to totality - manifest excess - unsophisticated fraud offences - proportionality - accumulation and special circumstances - sentence quashed and new sentence imposed

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: Achurch v The Queen [2014] HCA 10
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Ghamaraoui v R [2009] NSWCCA 111
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Perry v R [2006] NSWCCA 351; (2006) 166 A Crim R 385
R v Hawkins (1989) 45 A Crim R 430
R v Simpson (1992) 61 A Crim R 58
Thompson-Davis v R [2013] NSWCCA 75
Veen v The Queen (No 2) (1988) 164 CLR 465

Category: Principal judgment

Parties: Shaun Harvey Matthews (Applicant)
Crown (Respondent)

Representation

- Counsel: Counsel:
B Rigg (Applicant)
N Williams (Respondent)

- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/120644

Decision Under Appeal

- Before: McLoughlin SC DCJ

- Date of Decision: 14 November 2013

- Court File Number(s): 2013/120644

Publication Restriction: Nil

JUDGMENT

MACFARLAN JA: I agree with Hamill J.
FULLERTON J: I agree with Hamill J.
HAMILL J: Shaun Harvey Matthews (the applicant) seeks leave to appeal against a sentence imposed on him on 13 November 2013, and adjusted on 14 November 2013, by his Honour Judge McLoughlin SC in the District Court. The applicant raises two grounds of appeal. The first ground is a discrete technical one while the second is based on the general proposition that the sentence imposed on him was manifestly excessive and unjust.
On 13 November 2013 the applicant stood for sentence in relation to 2 offences of dishonestly obtaining a financial…

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.

Continue reading Matthews v R

Details

AGLC: Matthews v The Queen [2014] NSWCCA 185
Case: [2014] NSWCCA 185
Decision Date: 17 September 2014

CaseChat Overview and Summary

Matthews was found guilty of a number of fraud offences and sentenced to a total of six years and nine months imprisonment. The defendant appealed against his sentence, arguing that the sentencing judge had misapplied the commencement date of his sentence, which was contrary to statute. The appeal raised questions about when a sentence commences, the application of the slip rule, and the power of the sentencing judge to adjust a sentence to correct an error. The appeal also considered whether an increase in the effective sentence constituted a manifest excess and whether the principles of finality and proportionality applied.

The court found that the sentencing judge had erred in determining the commencement date of the sentence. The court clarified that the commencement date of a sentence should be determined by the date on which the defendant was brought into custody. The court held that the slip rule could be applied to correct the sentence, but that the sentencing judge did not have the power to increase the effective sentence in doing so. The court emphasised the importance of maintaining findings as to the totality of the sentence and the principle of finality. The court found that the original sentence was manifestly excessive, given the unsophisticated nature of the fraud offences and the lack of special circumstances.

The court quashed the original sentence and imposed a new sentence of five years and six months imprisonment, to commence on the date on which the defendant was brought into custody. The court held that the new sentence was proportionate to the offending and took into account the accumulation of offences. The court noted that the defendant had no prior convictions and that the offending was opportunistic rather than premeditated. The court also took into account the defendant's guilty plea and his cooperation with the authorities.

Orders