Matthews v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0127

MARK MATTHEWS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2021
DATE OF JUDGMENT:	16 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 20
JUDGMENT APPEALED FROM:	[2019] VCC 2231 (Judge M Sexton)

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CRIMINAL LAW – Appeal – Conviction and Sentence – Applicant convicted of one charge of criminal damage, one charge of aggravated burglary, two charges of intentionally causing injury, two charges of recklessly causing injury and one charge of common assault – Total effective sentence 7 years’ imprisonment – Non-parole period 4 years 10 months – Jury discharged on first trial – Applicant convicted on second trial – Two jurors discharged during second trial – Whether miscarriage of justice caused by decision by judge to proceed with jury of ten – Whether guilty verdict on common assault charge unsafe and unsatisfactory – Whether judge took into account irrelevant considerations in sentencing – Leave to appeal granted – Appeal dismissed – Carson v The Queen [2019] VSCA 317, Wu v The Queen (1999) 199 CLR 99, R v Baden-Clay (2016) 258 CLR 308, Pell v The Queen [2020] HCA 12 applied, Guden v The Queen (2010) 28 VR 288 considered, Juries Act 2000 s 44.

PRACTICE AND PROCEDURE – Application for extension of time to file application for leave to appeal – Grounds of appeal reasonably arguable – Extension of time granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC with Ms G F Connelly	Criminal Lawyers Geelong
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
NIALL JA:

The applicant was charged on indictment with one charge of criminal damage (charge 1), one charge of aggravated burglary (charge 2), two charges of intentionally causing injury (charges 3 and 5), two charges of recklessly causing injury (charges 4 and 6) and one charge of common assault (charge 7).

The applicant first stood trial in respect of those charges in a circuit sitting of the County Court in Geelong on 22 February 2019. After a trial lasting 12 days, on 12 March 2019, the jury was unable to agree on charges 1, 2, 3, 5 and 7 but returned guilty verdicts on charges 4 and 6. The guilty verdicts on charges 4 and 6 were invalid, because they were alternative charges, and the jury had not returned a verdict acquitting the applicant on the primary charge. Accordingly, the jury verdicts on those charges were set aside.

Subsequently, on 3 October 2019, the applicant again stood trial in Geelong on the same charges. At the time of the empanelment, the jury was informed that it would be a five (or seven) day trial. However, as commonly occurs, it became apparent, at the end of the first week, that that estimate would be exceeded. On 11 October, the judge was advised that two jurors had informed her (by notes) that they had travel bookings for flights on 14 and 15 October 2019. Ultimately, after some discussion, the judge discharged those two jurors. In the course of that discussion, counsel for the applicant submitted that, if the two jurors were discharged, the trial should not proceed with ten jurors pursuant to s 44 of the Juries Act 2000, but that the jury should be discharged, and a retrial held. The judge did not accept that submission, and ruled, pursuant to s 44 of the Act, that the trial should continue with the remaining ten jurors.

Subsequently, on 14 October, the jury returned verdicts acquitting the applicant on charge 1 (criminal damage), but convicting him of charge 2 (aggravated burglary), charges 3 and 5 (intentionally cause injury), and charge 7 (common assault).

After hearing a plea in mitigation, the judge sentenced the applicant to a total effective term of 7 years’ imprisonment with a non-parole period of 4 years and 10 months. That sentence was constituted as follows:

Charge on Indictment

Charge

Maximum Penalty

Sentence

Cumulation

2

Aggravated Burglary

25 years’ imprisonment

6 years’ imprisonment

Base sentence

3

Intentionally Cause Injury

10 years’ imprisonment

2 years’ imprisonment

3 months’ imprisonment

5

Intentionally Cause Injury

10 years’ imprisonment

2 years 3 months’ imprisonment

3 months’ imprisonment

7

Common Law Assault

5 years’ imprisonment

12 months’ imprisonment

6 months’ imprisonment

TOTAL EFFECTIVE SENTENCE

7 years’ imprisonment

NON-PAROLE PERIOD

4 years 10 months’ imprisonment

PRE-SENTENCE DETENTION DECLARED

30 days’ imprisonment

6AAA DECLARATION

Not applicable

OTHER RELEVANT ORDERS

Forfeiture Order
464ZF Sample ordered

On 25 June 2020, the applicant applied, under s 313 of the Criminal Procedure Act 2009, for an extension of time within which to file and serve a notice of application for leave to appeal against conviction and sentence. On the same date, the applicant filed an application for leave to appeal against conviction and an application for leave to appeal against sentence.

In the application for leave to appeal against conviction, the applicant relies on two proposed grounds, namely:

1.The learned trial judge erred in deciding to proceed to verdict with a jury of only ten persons and thereby occasioned a substantial miscarriage of justice.
2.The guilty verdict on the charge of common law assault (charge 7) is unsafe and unsatisfactory.

The application for leave to appeal against sentence is based on two grounds, namely:

1.The learned sentencing judge erred in taking into account her own assessment of the prospects of the applicant being able to successfully review his mandatory deportation in the event that a sentence of more than 12 months’ imprisonment was imposed.
2.The learned sentencing judge erred in factoring ‘the experience’ that the health of some prisoners improves or at least stabilises because of better management of medical needs and other lifestyle improvements in prison — into the consideration of the mitigatory weight to be afforded to the issue of the applicant’s ill health.

Circumstances of offending

The applicant was born in New Zealand in 1960. He married at the age of seventeen years, and there are six children of that marriage. The eldest, Tania Matthews, is now aged forty years. In about 1989, the applicant migrated to Australia. Subsequently, he and his wife separated, and his wife moved to Brisbane.

At about the same time, the applicant commenced a relationship with Emma Delladio which lasted for about ten years. During that time, they separated and reconciled on a number of occasions. They had a son, Mark Junior, together, who, at the time of the offending in October 2016, was then three and a half years of age. Ms Delladio also had a daughter, Felicity Galea, who was then aged thirteen years. The applicant and Ms Delladio lived in separate houses, but they stayed overnight for several days a week at each other’s house in a regular pattern. In effect, they were a family unit.

On 29 October 2016, the applicant, Ms Delladio and the children attended a memorial function which involved travelling to various locations. At the end of the afternoon, Ms Delladio took the children back to her house. She left them in the care of a babysitter, and then was driven back to the function by Tania Matthews. In the early hours of the morning, Ms Delladio and the applicant had an argument. Ms Delladio left the function, walked to a service station, and caught a taxi to her house where she arrived some time between 2:00 am and 4:25 am.

Ms Delladio had only been home a very short time when the applicant and Tania Matthews arrived in her vehicle. At that point, the applicant remained in the vehicle, and Tania Matthews went to the front door. When Ms Delladio answered the door, Tania Matthews told her that the applicant wanted to take Mark Junior home with him. In response, Ms Delladio said that Mark Junior was then asleep and that she would not permit the applicant to take him.

After further discussions between Ms Delladio and Tania Matthews, the applicant got out of the vehicle and approached the front door. Ms Delladio locked the security door but kept the main front door open. The applicant began banging and kicking at the security door. When Ms Delladio attempted to close the main front door, the applicant pushed back against it, and barged through the security door, breaking the handle off it. The prosecution case, which was accepted by the jury, was that the applicant, at that point, intended to assault Ms Delladio and that he knew that she and the children were in the house. His forced entry into the house was the subject of charge 2 (aggravated burglary), on which the applicant was convicted.

After forcing his way into the house, the applicant struck Ms Delladio to the head a number of times using a piece of wooden chair that he had picked up from the front yard. Ms Delladio fell to the floor, with blood running down her face. That assault was not the subject of a charge, but was admitted in evidence by way of context. At that point, Ms Delladio told the babysitter to leave, which he did.

The applicant’s frightening entry into the house woke his son Mark Junior. He ran into his sister Felicity’s room because he was scared. After the applicant forced his way into the house, he went to Felicity’s room and demanded that she give him Mark Junior. He then took the boy from her arms and handed him to Tania Matthews who took him to the car. Ms Delladio attempted to stop him from doing so. In response, the applicant held her up against the architrave of the bedroom door and began punching her to the face several times before she fell to the floor. That conduct by the applicant was the subject of charge 3 (intentionally causing injury). The applicant then performed actions that Ms Delladio described as ‘ragdolling’ her, by throwing her around as if she were a ragdoll. Those actions were not the subject of a charge but, again, were context evidence.

The applicant then left the house. Ms Delladio picked herself up off the floor and followed him out in order to get Mark Junior back. The applicant again threw her around as if she was a ragdoll in the front yard, as well as hitting her with his fists. He picked up another piece of wood and hit her on the head while he held her to the bonnet of Tania Matthews’ vehicle. That conduct by the applicant was the subject of charge 5 (intentionally causing injury).

Ms Delladio then fell to the ground, passing in and out of consciousness. The applicant approached her. Felicity Galea intervened, getting between the applicant and Ms Delladio. In response, the applicant was alleged to have picked up another piece of wood and chased Felicity to the kerb with it, saying ‘come here you little bitch’. That conduct by the applicant was the subject of charge 7 (common assault).

By that stage, Ms Matthews had strapped Mark Junior into a car seat. The applicant got into the vehicle, and said to Ms Matthews ‘run the bitch over’. Ms Matthews then drove the vehicle away with the applicant and Mark Junior as passengers.

As a result of the assaults, Ms Delladio had a three centimetre cut above her left eye which was required to be sutured, a large bruise around the eye, a superficial laceration to her left cheek and a small abrasion across the nose. She also lost a front tooth and had multiple bruises on her upper and lower limbs. A 1.5 centimetre splinter was removed from her eyebrow.

Application for extension of time

As mentioned, the applicant was sentenced on 20 December 2019. The application for an extension of time, and the applications for leave to appeal against conviction and sentence, were filed on 25 June 2020. The latter applications had therefore been filed more than five months out of time.

The principles, that are relevant to an application for an extension of time, are well settled. The overriding consideration, on such an application, is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been instituted outside the prescribed time. A number of factors are taken into account in determining that question, including the length of the delay, the reasons for the delay, and the prospects of success of the proposed application for leave to appeal, should the extension be granted. Ordinarily, where the delay is considerable, the Court will not be disposed to grant an extension of time, unless it is satisfied that the proposed grounds of appeal are sufficiently of merit.[1]
[1]Kentwell v The Queen (2014) 252 CLR 601, 613–14 [30]–[32]; [2014] HCA 37 (French CJ, Hayne, Bell and Keane JJ); Bowling v The Queen [2013] VSCA 87, [17] (Redlich JA); Jopar v The Queen (2013) 44 VR 695, 707 [59]–[60]; [2013] VSCA 83 (Priest JA); Roth v The Queen [2014] VSCA 242, [3]–[4] (Neave and Priest JJA); Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA); Barber v The Queen [2018] VSCA 232, [3] (Kyrou and Kaye JJA).

The reasons for the delay were explained in an affidavit sworn by the applicant’s solicitor, in which she stated:

The matter was delayed because of several factors. These included the Christmas and January holiday period, the time required to both clarify and secure funding for the legal representation of the Applicant, the delay in obtaining all relevant documentation for the Appeal in relation to both the trial and retrial and preparation and briefing of new counsel for an Application for leave to Appeal against Conviction and Sentence. Counsel also required time to read the material and provide advice. The Written Case for both Conviction and Sentence was subsequently provided on 19 June 2020. This process occurred during the Covid-19 pandemic emergency restrictions.

Each of those factors provide an explanation for some of the period of delay between the date of sentence and the date of the filing of the present applications. Counsel were required to consider the transcript of the two trials which had taken place, although the evidence given in both trials was substantially the same. Nevertheless, the explanation provided by the applicant’s solicitor does not fully justify the length of the delay. In those circumstances, it would not be appropriate to grant the application for an extension of time, unless we were satisfied that the proposed grounds of appeal would have sufficient prospects of success that it would be unjust to refuse to hear the substantive applications for leave to appeal against conviction and sentence. Accordingly, it is necessary to consider the grounds that are sought to be relied on by the applicant.

Application for leave to appeal against conviction ground 1 — Submissions

Ground 1 of the application for leave to appeal against conviction is directed to the decision of the judge to proceed to verdict with a jury of ten persons, having discharged two of the jurors on the sixth day of the trial (11 October 2019).

After the judge discharged two of the jurors at their request, her Honour, having heard submissions from counsel, ordered that the trial should continue to verdict with the remaining ten jurors pursuant to s 44 of the Juries Act.

In a ruling, the judge noted that there were a number of relevant factors that needed to be taken into account, and which are set out in the Criminal Proceedings Manual. Those factors included the seriousness of the offending, the stage of the trial (which was close to the close of the prosecution case) and the wish of the applicant to have a jury of twelve members.

The judge then considered the issue of delay. Her Honour noted that it was unlikely that, if the jury were discharged, the third trial would be held in a circuit sitting in 2019, so that there would be a delay of in excess of three years from the date of the offence.

The judge noted that the issue of the deterioration of witnesses’ memories was not particularly relevant, because the evidence of those witnesses had been pre-recorded. However, her Honour took into account that the delay would result in ‘added trauma’ to witnesses on both sides, who were anxious to know the outcome, as well as the accused. Finally, the judge noted that there had already been two trials that had occupied almost 19 days and that a further trial would constitute a ‘waste of costs’. In those circumstances, the judge considered that there was not a high degree of necessity to discharge the remaining ten jurors.

On this application, counsel for the applicant submitted that the decision by the judge was based on a number of errors. First, it was submitted that the judge erred in considering that it was unlikely that a retrial would proceed in 2019. Counsel submitted that the judge had no basis upon which to proceed on that assumption, and that she had not raised that issue with counsel. Secondly, it was submitted, the judge erred in taking into account the potential anxiety to witnesses, in circumstances in which the judge did not know the earliest date on which a retrial could be heard. Thirdly, it was submitted that the judge erred in having regard to the fact that the applicant would be anxious to know the outcome of the trial, in circumstances in which the applicant had given specific instructions to his counsel that he did not wish the trial to continue with a jury of ten. Fourthly, it was submitted that the judge gave excessive weight to the potential wasted costs on a discharge of the jury. It was contended that such a factor could only be a secondary consideration. Fifthly, counsel submitted that the judge failed to take into account that the jury in the first trial had been unable to reach verdicts on a number of charges on the indictment including the most serious (aggravated burglary). In those circumstances, it was submitted that it was important that the full complement of a jury of twelve should hear the case.

Finally, counsel noted that the evidence in the trial consisted largely of evidence that was replayed from the first trial, and the case was one in which the allegations were likely to instil strong feelings against the applicant. In those circumstances, it was submitted, the applicant was entitled to have the charges heard against him determined by a jury of twelve.

In response, counsel for the respondent noted that as the trial was heard on circuit, delays in hearing trials are well known to those who practise criminal law in the circuit jurisdiction. There had been a significant delay of some eight months between the hearing of the first trial and the second trial. Counsel submitted that the judge was entitled to take into account the potential anxiety to the witnesses, in circumstances in which the conclusion of the trial had hung over their heads for a period of almost three years since the incident. Counsel further submitted that the judge was correct to take into account the issue of ‘waste of costs’ in discharging the jury at the second trial. Those costs included not only the costs of the aborted trials, but also the delay caused to the disposal of other criminal trials in the hearing lists. Finally, counsel for the respondent submitted that the judge was correct not to take into account the failure of the first jury to reach a verdict on the charges. It was a matter of pure speculation as to how the previous jury viewed the charges, and the judge correctly pointed out that different juries often reached different verdicts on the same evidence.

Ground 1 — analysis and conclusions

The principles, that apply to the exercise by a trial judge of a discretion to discharge a criminal jury, are well established.[2] They were conveniently summarised by T Forrest JA in Carson v The Queen[3] in the following terms:
[2]Maric v The Queen (1978) 20 ALR 513, 520; Crofts v The Queen (1996) 186 CLR 427, 432; [1996] HCA 22 (Dawson J).
[3][2019] VSCA 317.

Whilst this ground is a factual extension of ground 1A, it is conceptually different. In substance, this ground alleged that the exercise of a judicial discretion has miscarried. The principles governing the exercise of a trial judge’s discretion to discharge a criminal jury are settled. In short:
·The discretion to discharge the jury can only be exercised when there is a ‘high degree of need for such discharge’.
·The discretion to discharge the jury is to be exercised only when that course is necessary to prevent a miscarriage of justice.
·Ordinarily, a trial judge will be in a better position than an appeal court to assess whether, having regard to the course and atmosphere of the trial, any prejudice may be dispelled by a clear warning to the jury.
·An appeal predicated upon a trial judge’s failure to discharge a jury is not an appeal against that failure, but an appeal against the conviction. The applicant bears an onus of demonstrating that the exercise of his Honour’s discretion was infected by error. In Victoria, if the applicant is able to do this, then the respondent must demonstrate that the error did not make a difference to the outcome of the trial.
·An appellate court will not lightly interfere with the discretion to refuse an application to discharge a jury.[4]

[4]Ibid [90] (citations omitted).

In Wu v The Queen,[5] the High Court considered the effect of the statutory equivalent in New South Wales of s 44 of the Juries Act. In their joint judgment, Gleeson CJ and Hayne J discussed some of the considerations which should be taken into account by a judge in determining whether the trial should proceed with less than twelve jurors empanelled. In particular, those considerations included the burden, imposed by any delay in the trial, on the accused person and witnesses and other persons interested in the case, and the effect of any delay, resulting from a discharge of the jury, on other accused persons awaiting trial before the Court.[6]
[5](1999) 199 CLR 99; [1999] HCA 52.
[6]Ibid 106–7 [19]–[22].

For the reasons that follow, we are not persuaded that the judge erred in holding that there was not a high degree of need to discharge the remaining ten jurors and to order a retrial of the charges against the applicant.

In particular, we do not consider that the judge erred in taking into account her assessment of the potential delay in the hearing of the charges against the applicant, if the jury was discharged. Plainly such a consideration was relevant to the exercise of her Honour’s discretion. It was implicit, both in her Honour’s ruling, and in the course of submissions, that it was most unlikely that, if the judge discharged the jury, it would be possible to commence a re-trial of the charges in the same month’s circuit sittings in Geelong. Accordingly, it was inevitable that some delay would be incurred if the current trial was terminated. Her Honour was an experienced judge in criminal trials, and was well placed to express the view, in her ruling, that it was unlikely that, if the jury were discharged, a third trial would be held in a circuit in the same year (2019). That consideration is particularly relevant in view of the circumstance that the current trial was taking place almost three years after the date of the alleged offences.

Nor do we consider that the judge made any error in having regard to the fact that the applicant himself would be anxious to know the outcome of the trial. Such a consideration would be self-evident. Her Honour’s observation, to that effect, was not contradicted or undermined by the fact that the applicant had given instructions to apply for a discharge of the jury. The fact, that the applicant might have given such instructions to his counsel, was not inconsistent with the proposition that, as an accused person, he would be expected to be anxious to know the outcome of the serious charges that were brought against him.

Further, we do not consider that any error was disclosed by the judge referring to the ‘waste of costs’ involved in the discharge of the jury. The financial cost, that would be wasted by reason of the discharge of the jury, would be a matter of minor weight in a consideration of whether the interests of justice were such that there was a high degree of need to discharge a jury. However, in this context, the reference by the judge to the ‘waste of costs’ also included the consideration that, if the jury were discharged, and the applicant were to be retried on the same charges, that would have a consequent impact on the efficient administration of justice, and would delay the trial of other cases in the court’s list.

Finally, we are not persuaded that the judge erred in failing to have regard to the fact that the jury in the first trial had been unable to reach agreement on verdicts for a number of the charges on the indictment, including the charge of aggravated burglary. As counsel for the respondent correctly submitted, it is a matter of speculation as to how the previous jury viewed the charges. It is the experience of the courts that different juries not infrequently reach different verdicts on the same evidence.

In those circumstances, we are not persuaded that the issues, raised by counsel for the applicant, establish any arguable error by the judge in the exercise of her discretion not to discharge the jury. On the contrary, we consider that there were sound reasons for her Honour not to do so. At the time at which it was necessary to discharge the two jurors, the prosecution case was well advanced. The charges against the applicant had already been the subject of a twelve-day trial, in which the jury had been unable to reach verdicts on a number of the charges. If the judge had discharged the jury, there would, inevitably, have been some delay in the retrial of those charges. A number of the principal witnesses in the case, including Ms Delladio, Felicity Galea and Tania Matthews, had been personally involved in the incident that was the subject of the charges. While their evidence had been pre-recorded, nevertheless, it might be expected that they would experience some anxiety until the charges against the applicant were resolved. If the jury was discharged, and the applicant retried again, other persons awaiting trial would be subject to further delay in the disposition of the charges against them.

For those reasons, we are not persuaded that ground 1 of the proposed grounds of appeal against conviction should succeed.

Application for leave to appeal against conviction — ground 2

Under ground 2, counsel for the applicant submitted that the guilty verdict on charge 7 (common law assault on Felicity Galea) was unsafe and unsatisfactory. In support of ground 2, counsel relied substantially on the proposition that the evidence of Felicity Galea, in respect of that charge, was not supported by the evidence of her mother, Emma Delladio, the neighbour Larinda McLeod and the applicant’s daughter, Tania Matthews. It is convenient first to summarise the relevant aspects of their evidence, before turning to the competing submissions made by the parties under ground 2.

Summary of Evidence on charge 7

The evidence of Felicity Galea consisted of a VARE interview between herself and police, and cross-examination of her in the first trial.

In her evidence-in-chief, Ms Galea stated that she was asleep when the applicant forced his way into her mother’s house. The noise of his entry awoke Mark Junior, who came into her room. The applicant then entered her room, snatched Mark Junior from her and took him out of the room. At the door of the room he handed Mark Junior to Tania Matthews. At that point, Ms Delladio tried to intervene. The applicant punched her to the face and threw her to the ground. Blood was dripping from Ms Delladio’s nose. Ms Delladio then stood up and followed the applicant as he proceeded to the front door. Ms Galea followed them. When she got outside, she could see that the applicant had a chair leg in his hand. The applicant grabbed Ms Delladio, pinned her across the car, and was hitting her with the chair leg. Ms Delladio moved to the side, causing the applicant to miss her head, and hit the front windshield of the vehicle. Ms Delladio then fell off the car to the ground. Ms Galea said that her mother was ‘like conscious but unconscious’.

At that point, Ms Galea stood between the applicant and her mother and pushed him away. The applicant then grabbed another piece of wood from the front yard and started to chase her with it. As he did so, he called out to Ms Galea ‘come back here you little bitch’, and he swung the piece of wood in his hand. Ms Galea at that point saw Tania Matthews get out of the vehicle and go to kick Ms Delladio. Ms Galea ran back to them, and pushed both Tania Matthews and the applicant away from her mother. Tania Matthews then got back into the car. The applicant called out to her ‘just run her [Ms Delladio] over’. In response, Ms Galea stood between the vehicle and her mother. The applicant got into the vehicle, and Ms Matthews drove it away.

In her evidence (in the first trial), Ms Delladio described the incidents, that constituted charges 2, 3 and 5. She said that after the applicant had forced his way into the house, he struck her repeatedly to the head with a piece of wood. At that point, there was ‘blood everywhere’. She later learnt that she had a fractured eye socket. In her evidence, she said that ‘bits and pieces come in and out’ about the incident. When asked to explain, she said:

Well I’d blackout for a minute and then something could make me come back up to fight for my kids. I knew I had to keep going for the kids, so.

Ms Delladio stated that she tried to stop the applicant while he was trying to remove Mark Junior from the house. In response, the applicant was ‘hitting and ragdolling’ her around the house with his fists to her head. After Tania Matthews put Mark Junior in the vehicle, the applicant continued to assault her. He continued to ‘ragdoll’ and hit her with his fists and a piece of wood in the front yard. At that point, Ms Galea intervened to try to save her. Ms Delladio was pressed up against the bonnet of the vehicle, with the applicant restraining her and striking her with a piece of wood. She then fell to the ground. She could hear her daughter, Ms Galea, yelling at the applicant to stop hitting her. After Ms Delladio fell to the ground, she could hear the applicant stating to Tania Matthews to get in the car and drive off, and to ‘run the bitch over’. Ms Galea said to him ‘You’re not running my mum over’ and stood between her and the vehicle. When asked (by the prosecutor) whether at that point she blacked out or became unconscious, Ms Delladio stated ‘Not that I can recall, but I don’t know’. She stated that after the police and ambulance arrived, she could not remember going to the hospital. She said she could recall being at the hospital and she heard voices that sounded like those of the applicant and Tania Matthews.

In cross-examination, counsel for the applicant referred Ms Delladio to her first police statement, in which she said (inter alia) that after Mark Junior was in Ms Galea’s room, she did not remember what happened next, and then said:

The next thing I know I was outside at the front of the house it was like I was blacking out and consciousness but my adrenalin was keeping me going.

When asked in cross-examination whether she was blacking out during the incident, Ms Delladio said:
I don’t know because my adrenalin kept me going.

Ms Delladio was asked further questions about that matter in re-examination. In answer to those questions, she said that when she felt that she was blacked out, she could hear certain things, but she thought she had her eyes closed. She then said that there was ‘… a lot of blood so I don’t even know if my eyes are open or closed at times cause the blood was everywhere’. She said that she was in that state two or three times, during which she did not know if she was ‘seeing things’, but she could hear things which got her up again.

Ms Larinda McLeod lived in premises that were directly opposite Ms Delladio’s house. In her evidence (in the first trial) she stated that in the early morning on 30 October 2016, she made two 000 calls concerning the incident that she heard and observed at that house. She said that at first she could hear noise in the opposite house that attracted her attention. She went outside her house and observed the front of those premises. She said that the street lighting in Donnelly Avenue did not illuminate the front yard. There was a light on the front porch to the premises opposite, but that only illuminated the front door. She said that during the incident that followed, she was ‘constantly in and out’ of her own house and she was on the mobile telephone. She saw ‘the male’ (the applicant) carrying the child to the vehicle and another girl, who looked like a teenager (Felicity Galea), saying ‘you’re not taking my brother’. She then saw the vehicle leaving.

In cross-examination, Ms McLeod said she had a clear unobstructed view of the house opposite her. After she saw ‘the man’ (the applicant) put the child in the vehicle, she did not see any violent incident take place in the front yard of those premises. She said that she heard the teenager say ‘you’re not taking my brother’ as she was coming out the front door of the house. Ms McLeod said that the teenager went to the front of the vehicle, and she (Ms McLeod) ‘couldn’t see much then’ because she could not see through the vehicle. She said that when the teenager was standing in front of the vehicle, she could not see her. At that point, she did not see any violence. She could not see anything that was happening around the bonnet of the vehicle. Some of her view was obstructed, but she agreed that if something was happening on the bonnet of the vehicle, she would have had a sufficiently unobstructed view to see it. In particular, she said that she did not observe any ‘interaction’ between ‘the big man’ (the applicant) and the teenage girl (Felicity Galea) in the front yard. She did not see anyone holding anything. In answer to further questions, she said that the teenage girl did go in front of the vehicle and then back to the side of it, but Ms McLeod did not see any interaction between the applicant and the teenage girl.

The applicant’s daughter, Tania Matthews, was called by the prosecution as a witness in the trial. The evidence that she gave was unfavourable to the prosecution. After she recounted her version of the incident that occurred on 29 October, the prosecution was granted leave to cross-examine her under s 38 of the Evidence Act 2008.

In her evidence, Ms Matthews stated that after attending the memorial function, she drove the applicant to Ms Delladio’s house in order to obtain the applicant’s house keys. She said that when she asked Ms Delladio for her father’s house keys, Ms Delladio responded by swearing at her, stating that she had already given the keys back to the applicant. Ms Matthews said that Ms Delladio was yelling and screaming at her. When she walked back to the vehicle, she heard the kitchen window smash and she could hear Ms Delladio in the kitchen.

According to Ms Matthews, at that point, the applicant was sitting in the vehicle. Ms Delladio was still screaming at them and acting in a very erratic manner. Ms Matthews and the applicant became concerned about the welfare of Mark Junior, so they went to the door of the house to see if he was all right. Ms Matthews said that as they went to the front door, Ms Delladio was smashing on the door from the inside and swearing. Ms Matthews said that Ms Delladio then opened the wooden door. Ms Matthews could see Mark Junior and he was calling out for the applicant. She said that Mark Junior wanted to go with them. Accordingly, they said to Ms Delladio, ‘we just want little Mark’. However, Ms Delladio was running at the door and ‘banging it with the chair leg’. Ms Delladio then opened the door, and started hitting the applicant on the head with the chair leg. She hit him more than once causing him to bleed. At that point, the applicant was trying to protect himself. Ms Matthews was trying to tell Ms Delladio to let them take Mark Junior because he was upset. Ms Delladio then attacked Ms Matthews and struck her on the head with the piece of wood. She then picked up a machete and threw it at the applicant.

In answer to further questions, Ms Matthews said that Ms Delladio said to the applicant that he and Ms Matthews could take Mark Junior. At that point, Felicity Galea was holding Mark Junior. Ms Matthews asked her to let him go so he could come with them. After a short time, Ms Galea complied and she gave Mark Junior to the applicant. Ms Delladio was still acting in an erratic manner at that point. She was throwing items at them and hitting the applicant all over his body. Ms Matthews took Mark Junior to the vehicle. Ms Galea came at her and tried to hit her with a wooden chair leg. Ms Matthews responded by saying ‘what are you doing?’ and Ms Galea stopped in front of her and refrained from striking her. Ms Delladio was then still attacking the applicant. He had blood all over his face. Ms Matthews put Mark Junior in the car seat. Ms Delladio was striking the front of the vehicle with the chair leg. She struck and damaged the windscreen of the vehicle. Ms Galea was then standing somewhere on the front lawn. The applicant got into the vehicle, and Ms Matthews drove off.

At that point, the prosecutor was granted leave to cross-examine Tania Matthews as an unfavourable witness pursuant to s 38 of the Evidence Act.

The cross-examination by the prosecutor was thorough, covering a number of aspects of Ms Matthews’ evidence. They included the following:

·In her evidence, Tania Matthews stated that they attended at Ms Delladio’s home in order to retrieve the applicant’s keys to his house. However, in her police statement, and in the committal proceeding, Ms Matthews did not provide that explanation as a reason for their attendance at Ms Delladio’s house.
·Ms Matthews did not observe the babysitter run out of the front door of the house after they attended at the premises.
·The prosecutor cross-examined Ms Matthews concerning the injuries sustained by Ms Delladio. Ms Matthews insisted that she did not observe any action by her father (the applicant) or anyone else, which would have caused any of those injuries. Ms Matthews adhered to that account, when it was put to her that the DNA evidence established that bloodstains, on the broken leg of the chair that was found at the premises, belonged to Ms Delladio.
·Ms Matthews was challenged on how she was able to calculate that during the memorial function Ms Delladio had consumed at least one slab (24 cans) of alcohol.
·Although (according to Ms Matthews) Ms Delladio was acting violently and irrationally, neither Ms Matthews nor the applicant telephoned the police emergency number 000. Further, despite that conduct by Ms Delladio, they left Felicity Galea (who was then thirteen years of age) at Ms Delladio’s home when they departed from the premises.
·Ms Matthews’ evidence, that the applicant was not holding anything in his hand when he attended at the door of the premises, was inconsistent with her police statement that the applicant used a ‘stick or something’ to open the door.
·Ms Matthews’ claim that Ms Delladio struck her at least twice on the head with a stick causing her to bleed was not consistent with her police statement in which she said that the only injury sustained by her was a scratch to her arm.

In the course of the cross-examination, the prosecutor put to Tania Matthews that her account was fabricated, and he put to her, in specific terms, the evidence that was given by both Ms Delladio and Felicity Galea. In answer to that series of questions, she said that she did not see the applicant pick up a stick and try to hit Felicity Galea with it.

Ground 2 — submissions

In support of ground 2, counsel for the applicant noted that none of the three other eyewitnesses to the incident, Emma Delladio, Larinda McLeod or Tania Matthews, gave evidence which supported the account given by Felicity Galea of the assault that was the subject of charge 7.

Counsel noted that according to Felicity Galea, the incident occurred when she intervened in the assault that was inflicted on Ms Delladio at the front of the vehicle, and she was then chased by the applicant. Ms Delladio gave evidence that Felicity Galea tried to intervene by standing between her and the car near the front yard. However, she did not give evidence of any incident in which the applicant then chased Felicity Galea, brandishing a stick at her. Instead, according to Ms Delladio, the applicant got into the vehicle and departed.

Counsel further noted that Larinda McLeod was an eyewitness to the episode, but she did not give evidence of the applicant chasing Felicity Galea. In her evidence, she said that Ms Galea yelled ‘you are not taking my brother’. She also gave evidence that she had observed the babysitter running from the front of the house and away from the property. In cross-examination, she said that she did not observe any interaction between the applicant and Felicity Galea.

Finally, counsel referred to the evidence of Tania Matthews. It was noted that Ms Matthews said that she did not see the applicant try to hit Felicity Galea with a stick. When the prosecutor cross-examined Tania Matthews, pursuant to s 38 of the Evidence Act, he only put one question to her concerning the incident that was the subject of charge 7. While it was open to the jury not to accept the evidence of Ms Matthews generally, nevertheless, it was submitted, the jury could not have totally rejected her evidence, since it was consistent with the acquittal of the applicant on charge 1 (criminal damage to the window).

For those reasons, it was submitted that this Court should have a reasonable doubt first as to the guilt of the applicant on charge 7, and that it should conclude that the conviction of the applicant on that charge was unreasonable pursuant to s 276 of the Criminal Procedure Act.

In response, counsel for the respondent noted that Felicity Galea was cross-examined about the account that she gave in respect of charge 7, and she was challenged on that account. However, she maintained her evidence that she was chased by the applicant in the manner described by her. The account given by Ms Galea was supported in part by the evidence of Ms Delladio, who confirmed that Ms Galea was outside the house and trying to protect her when the applicant was assaulting her with his fists and a piece of wood. Although Emma Delladio did not give evidence as to the applicant chasing Felicity Galea with a piece of wood, it was submitted that that was not surprising, as Ms Galea had stated that Emma Delladio had been lapsing in and out of consciousness when she was on the ground.

Counsel further submitted that while Larinda McLeod lived opposite the premises occupied by Ms Delladio, she was viewing events about 4:00 am, in circumstances in which she herself was not feeling well. Although she did not see anyone being subjected to violence in the front yard, she did see Felicity Galea go to the front of the vehicle and she said that she could not see much of what occurred there because her view was partially obstructed by the vehicle.

Counsel for the respondent further submitted that it was open to the jury to reject the evidence given by Tania Matthews, who was clearly a partial witness, and the account given by her was so extraordinary as to defy credulity.

Application for leave to appeal against conviction: ground 2 — analysis and conclusion

Ground 2 is based on s 276(1)(a) of the Criminal Procedure Act, which provides that a court should allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.

In order to succeed on that ground, the applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on charge 7.[7] In determining that question, the Court is required to make its own independent assessment of the evidence. However, in doing so it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility of determining the guilt or innocence of the accused person. Thus, in R v Baden-Clay,[8] the High Court stated:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.[9]

[7]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Dean, Dawson and Toohey JJ); SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14]; [2011] HCA 13 (French CJ, Gummow and Kiefel JJ); Pell v The Queen [2020] HCA 12, [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).

[8](2016) 258 CLR 308; [2016] HCA 35 (‘Baden-Clay’).

[9]Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted). See also Fennell v The Queen [2019] HCA 37, [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).

In Pell, the High Court emphasised that the assessment of the credibility and reliability of a witness, which is based on the manner in which the witness gave evidence in the witness box, is a matter for the jury and not the appellate court. The Court stated:

… the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box.
…
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[10]

[10]Pell [2020] HCA 12, [37], [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted).

The prosecution case, on charge 7, was based solely on the evidence of Felicity Galea. It is clear, from its verdict on that charge, that the jury accepted the evidence of Felicity Galea, and, in particular, it was satisfied beyond reasonable doubt of the reliability and credibility of the evidence given by her in respect of the incident in question.

In submissions to this Court, counsel for the applicant did not point to any aspect of the evidence given by Felicity Galea— either in chief or in cross-examination — that should have caused the jury to have a reasonable doubt as to the reliability or truthfulness of her evidence. Rather, ground 2 is based on the proposition that the evidence of Felicity Galea, on the event that was the subject of charge 7, was inconsistent with the evidence given by Ms Delladio, Larinda McLeod and Tania Matthews, as each of those three persons witnessed the events that occurred in front of Ms Delladio’s house on the evening in question, but none of them observed or gave evidence about the incident that was the subject of charge 7.

We are not persuaded that the fact, that those three witnesses did not observe or describe the incident that was the subject of charge 7, leads to the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt of the account given by Felicity Galea of the incident that was the subject of charge 7. On an analysis of the evidence, it was open to the jury to be satisfied that that circumstance was not so contradictory to, and did not so undermine, the evidence given by Felicity Galea, as to that incident, that it could not be satisfied beyond reasonable doubt of the guilt of the accused on charge 7.

In particular, it was open to the jury to form the view that it was understandable that Ms Delladio might not have observed the incident in question. The incident, that was the subject of charge 7, occurred at the conclusion of a violent intrusion by the applicant into Ms Delladio’s home, in the course of which Ms Delladio had been subjected to a series of violent assaults by the applicant. The applicant was a very large man, weighing in excess of 200 kilograms. By contrast, Ms Delladio was quite diminutive, being some 150 centimetres in height and weighing 50 kilograms. It was well open to the jury to conclude that, at the point at which the events that were the subject of charge 7 occurred, Ms Delladio was traumatised and terrified, and that she was then lapsing in and out of consciousness. In those circumstances, it is understandable that she might not have either observed, or mentally assimilated, all that was occurring around her.

In his submissions, counsel for the applicant particularly emphasised that in her evidence Felicity Galea stated that she put herself between Ms Delladio and the applicant at the point at which the applicant had forced Ms Delladio against the vehicle’s bonnet and was beating her with a stick. Counsel pointed out that when Ms Delladio described that part of the incident, she was aware that Felicity was present, but she did not then (in her evidence) describe witnessing the incident that was the subject of charge 7. In that way, it was submitted, the evidence given by Ms Delladio directly contradicted the evidence of Ms Galea, because Ms Delladio would have seen the incident, that was the subject of charge 7, if it had occurred.

We do not consider that the evidence of Ms Delladio, as to that aspect of the incident, contradicted the evidence of Felicity Galea, or was such as to require the jury to have a reasonable doubt about the guilt of the applicant on charge 7. As we have noted, at the time at which that incident occurred, Ms Delladio was in a much depleted state, passing in and out of consciousness. When asked when she first noticed Felicity Galea she responded: ‘… I’m trying to think when I rolled off the bonnet she was — right there’. She said that she had heard Felicity yelling at the applicant to stop before she rolled off the bonnet. In those circumstances, it was open to the jury to understand that Ms Delladio had rolled off the bonnet onto the ground, and was then in a much reduced conscious state, at the time at which the incident, that was the subject of charge 7, took place. In that way, it was open to the jury to form the view that the absence of any evidence from Ms Delladio, concerning that incident, did not contradict, or affect the reliability, of the evidence of Felicity Galea concerning that incident.

On the other hand, the evidence given by Ms Delladio did provide some support to part of the account given by Felicity Galea, in that Ms Delladio gave evidence that, when she was restrained across the bonnet of the vehicle, she could hear Felicity Galea yelling at the applicant, and a short time later, Felicity stood between her and the vehicle when the applicant told Tania Matthews to run her over with the vehicle.

In our view, it was also open to the jury to conclude that the fact that Ms McLeod did not observe the incident that was the subject of charge 7 did not contradict the evidence of Felicity Galea. Ms McLeod stated that during the incident, she was constantly ‘in and out’ of the house, and she was speaking on the mobile telephone. Her view of the whole of the incident was, to an extent, obstructed by Ms Matthews’ vehicle. The incident occurred in the early hours of the morning, and, according to Ms McLeod, available lighting did not illuminate the area of the front yard in or near which the incident occurred.

Finally, it was open to the jury to reject the account given by Tania Matthews in respect of what occurred in front of the house, and indeed, it was well open to the jury to reject a large part of Ms Matthews’ evidence.

It is quite clear, from reading the transcript, that the jury would have been justified in considering that the evidence given by Ms Matthews was coloured by her desire to be loyal to the applicant. Further, the jury was entitled to conclude that the evidence of Tania Matthews was significantly undermined by the searching cross-examination of her by the prosecutor pursuant to s 38 of the Evidence Act. In the course of that cross-examination, the prosecutor revealed a number of inconsistencies in the evidence of Ms Matthews. In some parts, her evidence was quite improbable, such as her evidence that during the memorial function, she kept account of the amount of alcohol that was consumed by Ms Delladio.

Ultimately, as the High Court observed in Baden-Clay,[11] the setting aside of a jury verdict, on the grounds that it was unreasonable, is a serious step which should not to be taken without paying particular regard to the important advantage which the jury had in observing and hearing the witnesses called in the trial. Taking those matters into account, we consider that it was well open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on charge 7.
[11](2016) 258 CLR 308, 329 [65]; [2016] HCA 35 (French CJ, Kiefel, Bell, Keane and Gordon JJ).

Accordingly, ground 2 of the application for leave to appeal against conviction must be refused.

Application for leave to appeal against sentence

The plea submissions

On the plea, counsel for the applicant submitted that the offending was ‘situational’, and that the applicant and Ms Delladio had had no further contact during the three years following the offences. The applicant had no previous convictions. It was submitted that the offending was totally out of character for him, and his prospects of rehabilitation are excellent. In that respect a number of character references were tendered on behalf of the applicant.

The two principal factors were relied on by way of mitigation. The first factor was that the applicant, not being an Australian citizen, would be deported if sentenced to a term of imprisonment in excess of twelve months, pursuant to s 501(3A) of the Migration Act 1958 (Cth). The applicant had been in Australia since 1989, and during that period had never returned to New Zealand. He had no further ties with family in New Zealand, and if he were deported he would be isolated from his children and grandchildren.

The other principal factor that was relied on was the applicant’s health. The applicant had a significant history of ill-health and he was on a disability support pension. A report of Professor Munro Gall, a consultant forensic physician, was tendered on the plea. Dr Gall noted that the applicant’s general practitioner had advised that the applicant had morbid obesity and diabetes, that he had suffered strokes and ischaemic heart disease, and that he had chronic cardiac ischemia which had resulted in diabetic retinopathy as well as bilateral cataracts. In addition, the applicant suffers from sleep apnoea.

Dr Gall, in a comprehensive report, outlined the applicant’s medical history. Having examined the applicant, he concluded that the applicant had a number of active medical conditions. The most significant of those conditions were diabetes mellitus (with complications of peripheral vascular disease and diabetic retinopathy) and a serious cardiac condition. The applicant’s diabetes was under some degree of control, but it had not been controlled in the past, which had led to complications that included retinopathy, peripheral vascular disease and probable kidney disease. The applicant’s cardiac condition included a diagnosis of congestive heart failure. On examination, he was in atrial fibrillation, which resulted in the heart not pumping blood efficiently around the body. In summary, Dr Gall concluded that a prison sentence might aggravate the applicant’s current medical condition and result in a reduced life expectancy. Dr Gall expressed the view that the applicant’s time in custody would be expected to be more onerous as a result of his medical conditions.

Reasons for sentence

In her reasons for sentence,[12] the judge commenced by outlining the circumstances of the offences of which the applicant was convicted. Her Honour noted that Ms Delladio had provided a victim impact statement in which she described the traumatic impact that the events had had, and continued to have, on her.[13]
[12]DPP v Matthews [2019] VCC 2231 (‘Reasons’).
[13]Ibid [30].

The judge then noted that the offence of aggravated burglary was a very serious offence, and that the offending involved in charges 3, 5 and 7 was also serious. She observed that the offending in charge 7 — threatening a child with a weapon — was a serious example of that offence.[14] The judge observed that the offending involved a number of aggravating factors. First, all of the offences were committed in the context of an intimate relationship.[15] Secondly, the aggravated burglary constituted a serious example of that offence, because: it took place in the context of an intimate relationship; the applicant’s intent was to assault his partner; the applicant forced his way through the security door and the main door; he picked up a weapon with the intent of assaulting Ms Delladio; the burglary took place in the early hours of the morning; and the applicant knew that Ms Delladio, Felicity Galea and Mark Junior would all be present.[16]
[14]Ibid [32].
[15]Ibid [34].
[16]Ibid [37].

The judge accordingly found that the objective gravity of all the offending was ‘very serious’ and that the applicant’s moral culpability was high.[17]
[17]Ibid [40].

In mitigation, the judge took into account that the applicant had no previous convictions, and that apart from the offending he was otherwise of good character.[18] The judge noted that the two principal mitigating circumstances were, first, the applicant’s ill-health, and, secondly, the prospect of deportation. Having summarised the contents of the report of Dr Gall in some detail,[19] she accepted (as conceded by the prosecution) that by reason of the applicant’s health, a sentence of imprisonment would be more onerous for him.[20] Her Honour then stated, in a passage that is the subject of ground 2 of the application for leave to appeal against sentence, the following:

While I accept Dr Gall's view that experience indicates that prisoners need to take a proactive approach to their healthcare while imprisoned and that a prisoner's health may deteriorate in prison, I note that experience also indicates that the health of some prisoners improves or at least stabilises because of better management of medical needs and other lifestyle improvements, such as diet, in a closed environment. Experience also indicates that Justice Health manages prisoners with many and varied serious and life-threatening health conditions and meet their medical needs sometimes better than they were being met when the prisoner was in the community and not managing very well on their own.[21]

[18]Ibid [43]–[44].

[19]Ibid [50]–[53].

[20]Ibid [54].

[21]Ibid [55].

The judge then observed that there was no evidence of the applicant’s prognosis, but said that she took into account the potential for a reduced life expectancy, because of the applicant’s conditions and the circumstance that a term of imprisonment might negatively impact on his already compromised health.[22]
[22]Ibid [56].

The judge then discussed the question of the deportation of the applicant on completion of his sentence. The judge noted because the applicant was not an Australian citizen, his ‘greatest fear’ about receiving a prison sentence in excess of twelve months was that his visa would be automatically cancelled and he would be deported. The judge further noted that the applicant had not returned to New Zealand for some thirty years, and that if deported he would lose the support of, and close contact with, members of his family in Australia.[23] Her Honour then stated, in a passage which is the subject of ground 1, the following:

I take into account that a sentence of imprisonment would weigh more heavily on you because of your concerns about being deported. However, if it is more than 12 months and your visa is cancelled, you have a right to have that decision reviewed. As best as I can assess the prospects of a successful review, you have in your favour previous good character with no other criminal history during the 30-year period of living in Australia and have strong ties to your immediate family in Australia, with no ties to your extended family in New Zealand. I have taken that into account in the exercise of my sentencing discretion.[24]

[23]Ibid [57].

[24]Ibid [58].

Finally, the judge took into account that her assessment of the applicant’s prospects of rehabilitation were good.[25] In addition, as a mitigating circumstance, there had been a delay of some three years in the resolution of the charges against the applicant and the applicant had, in that time, endured two trials.[26]
[25]Ibid [59].
[26]Ibid [60].

Application for leave to appeal against sentence ground 1 — submissions

In support of ground 1, counsel for the applicant noted that, in the plea, counsel then appearing for the applicant and the prosecutor both recognised that it could not be asserted with certainty that the applicant would ultimately be deported, because it was possible that he might successfully review the mandatory cancellation of his visa and his deportation. Nevertheless, it was accepted by the applicant’s counsel and the prosecutor that, as a consequence, the applicant’s time in custody would be more burdensome because of his apprehension that he might be deported.

Counsel for the applicant contended that, in those circumstances, the judge erred by making her own assessment of the prospects of a successful review by the applicant when taking into account, as a mitigating circumstance, the applicant’s fear of deportation. It was submitted that, in embarking on such an assessment, the sentencing judge entered the realm of speculation. Accordingly it was submitted, her Honour’s assessment of the prospects of a successful review was not a relevant consideration in determining the weight to be given to the applicant’s concern about being deported on the conclusion of his sentence.

In response, counsel for the respondent noted that the judge correctly took into account the risk to the applicant that he would be deported under s 501(3A) of the Migration Act, and that, as a result, the applicant’s sentence would weigh more heavily on him, because of his concerns about being deported. Counsel submitted that, in that context, the judge was correct to recognise that the applicant had a right to review such a decision under s 501CA(4)(b)(ii) of the Act, and that that right was not devoid of merit, because the applicant was able to rely on his previous good character and his strong family ties to the jurisdiction. The judge did not endeavour to quantify the applicant’s prospects of a ‘successful review’, nor did she seek to precisely assess the risk of deportation. It was submitted that the approach taken by the judge, to that issue, was consonant of the decisions of this Court including Da Costa v The Queen[27] and Konamala v The Queen.[28]
[27](2016) 258 A Crim R 60, 70 [41]–[42].
[28][2016] VSCA 48, [35]–[36].

Application for leave to appeal against sentence ground 1 — analysis and conclusions

It is well established that, in an appropriate case, a court should take into account, as a mitigating factor, that an offender might face the prospect of being deported from Australia on the completion of his or her sentence. In general, such a consideration is relevant for two reasons. First, the prospect that the offender may be deported would ordinarily weigh on the mind of the offender during the term of the imprisonment imposed by the court, and in that way would add to the burden of imprisonment. Secondly, in an appropriate case, it is proper to take into account the prospect that a sentence of imprisonment will result in the offender being deprived of the opportunity of settling permanently in Australia, because it would constitute extra-curial punishment of the offender additional to the term of imprisonment to be imposed by the court.[29] In determining whether such a prospect is a mitigating circumstance, and in assessing the weight to be accorded to it, the court should not be invited to speculate as to the outcome of any administrative or governmental review process which might be undertaken on completion of the offender’s term of imprisonment.[30]
[29]Guden v The Queen (2010) 28 VR 288, 294–5 [25]–[27]; [2010] VSCA 196 (Maxwell P, Bongiorno JA and Beach AJA) (‘Guden’).
[30]Guden (2010) 28 VR 288, 295 [28]; [2010] VSCA 196 (Maxwell P, Bongiorno JA and Beach AJA); Darcie v The Queen [2012] VSCA 11 [44]–[45] (Williams AJA); Da Costa v The Queen [2016] VSCA 49, [53] (Maxwell P, Redlich and Priest JJA).

In conformity with those principles, the judge took into account, in the applicant’s favour, the fact that, if he was deported, he would lose the support of and close contact with his children and grandchildren and might not be able to reconnect with family in New Zealand.[31] In that way the judge correctly took into account the additional extra curial punishment which would be suffered by the applicant if sentenced to a term of imprisonment in excess of twelve months. Similarly, the judge correctly took into account that a term of imprisonment would weigh more heavily on the applicant because of his concerns about being deported.[32]
[31]Reasons [57].
[32]Ibid [58].

Ground 1 is directed to the passage in the sentencing reasons that followed, in which the judge noted that if the applicant’s visa was cancelled, he would have a right of having his decision reviewed, in which case the applicant would have in his favour his previous good character, the absence of any criminal history, his strong family ties in Australia, and his lack of ties with extended family in New Zealand. Counsel for the applicant did not take issue with the judge’s reference to the fact that if the applicant’s visa was cancelled, he had a right to have the decision reviewed. Rather, he submitted that, in that passage, the judge impermissibly engaged in speculation as to whether the applicant would be able to succeed on a review of any such cancellation of his visa.

We do not accept that submission. In our view, it was appropriate and relevant for the judge to take into account that, on an exercise of his statutory right of review, the applicant would have in his favour a number of factors which might assist him in that review process. The judge did not, by doing so, engage in any speculation as to whether those factors would enable the applicant to succeed on any such review. Rather, the judge was observing, quite correctly, that the applicant did have in his favour sound factors on which to rely, so that his prospects of success on such a review were not nugatory or illusory. Indeed, if the judge had not referred to those circumstances, she would have proceeded on the incorrect basis that the applicant, in essence, had no effective right of review, so that his deportation, on the completion of sentence, would be a matter of certainty.

When the relevant passages of the judge’s sentencing remarks are read in context, it is clear that her Honour did appropriately take into account, and give proper weight to, the circumstance that the applicant faced the prospect of deportation on completion of his sentence.

It follows that ground 1 of the application for leave to appeal against sentence must fail.

Application for leave to appeal against sentence ground 2 — submissions

In addressing ground 2, counsel for the applicant acknowledged that, in the course of the plea, the judge raised the issue whether she was entitled to proceed on the basis that Justice Health provided appropriate management of the medical needs of prisoners. Counsel appearing for the applicant did not raise any issue with the judge proceeding on such a basis. However, counsel (on this application) submitted, the judge erred in proceeding on the basis that it was the experience of the courts that the health of some prisoners improves, or at least stabilises, because of better management of their health needs while in custody.

Counsel contended that such an approach was impermissible for three reasons. First, the judge did not give the parties the opportunity to address her on that point. Secondly, the judge’s observation did not describe the circumstances of medical conditions of other prisoners which had improved or stabilised in the past. Thirdly, it was submitted, it was unclear which of the applicant’s medical conditions might similarly improve or stabilise while in custody.

Counsel noted that, as the applicant had a chronic heart condition, it was inappropriate for the judge to apply the ‘experience’ of other prisoners in the past in determining the effect of the term of custody on the applicant’s health. In particular, it was submitted, the judge erred in taking that matter into consideration, in assessing the weight to be given to the applicant’s ill-health as a mitigating factor, without first giving counsel the opportunity to address her on that point.

In response, counsel for the respondent submitted that it is quite apparent, from the judge’s sentencing reasons, that her Honour took into account that the applicant’s serious medical conditions and limitations would render any sentence of imprisonment more burdensome. Her Honour also took into account that a term of imprisonment would have a negative impact on his health, and that there was a potential risk that his life expectancy would be reduced as a consequence of those factors.

Counsel for the respondent noted that when the judge raised the issue, in the course of the plea, whether she was entitled to take into account that Justice Health provided appropriate management for prisoners with medical conditions, counsel acting for the applicant did not seek to dispute that proposition. Instead, counsel for the applicant (on the plea) focused his primary attention on the burdensome nature of imprisonment as a mitigating factor, rather than on the potential that a sentence of imprisonment might result in a significant deterioration in his health.

In that context, counsel for the respondent submitted that it was appropriate for the judge to take into account that experience indicated that the health of some prisoners does improve or stabilise because of better management of their medical needs while in custody. Counsel contended that such information is regularly put forward before the courts, and is ‘so well-known [that] it is simply beyond dispute’.

Counsel for the respondent further noted that Dr Gall’s conclusion was predicated on the assumption that the applicant would not take a proactive approach to his health while he was undergoing sentence. However, no evidence was adduced on the plea to suggest that that would occur. In fact, the evidence was that the applicant had been adopting a better approach to his health, by losing a significant amount of weight in the previous year. In those circumstances, it was submitted, the judge was entitled to observe that the prison environment might not have the detrimental effects posited by Dr Gall.

Application for leave to appeal against sentence ground 2 — analysis and conclusions

The starting point, in considering ground 2, is that the judge, in her sentencing reasons, expressly took into account, as a mitigating circumstance, first, that a sentence of imprisonment would be more onerous for the applicant because of his medical conditions, and, secondly, that a term of imprisonment might adversely affect the applicant’s life expectancy.[33]
[33]Reasons [54], [56].

In discussing those two issues, the judge expressed the view, in the passage from her reasons quoted earlier,[34] that experience indicated that the health of some prisoners improves or at least stabilises because of better management of the medical needs and lifestyle improvements in the environment of prison. The submissions made by counsel for the applicant, under ground 2, raise two issues concerning that observation by the judge, namely:

(1)Did that observation reflect or result in any reduction of the weight which her Honour gave to the applicant’s ill-health as a mitigating circumstance?
(2)If so, did the judge thereby make a sentencing error?

[34]Above [88].

The answer to the first issue is not clear. In discussing the question of the applicant’s ill-health, the judge set out, in some detail, the contents of the report of Dr Gall. In doing so, she noted that Dr Gall considered that, because the applicant had not been proactive in relation to his health in previous years, he anticipated that a custodial sentence would result in a deterioration of the applicant’s health and may subsequently lead to reduced life expectancy, and that the applicant’s time in custody would be more onerous.[35] On the latter point, the judge accepted that serving a sentence of imprisonment would be more burdensome for the applicant because of his ‘serious medical conditions and [his] limitations’, and her Honour said that she had taken that matter into account in the exercise of the sentencing discretion.[36]
[35]Reasons [53].
[36]Ibid [54].

The judge then returned to the view expressed by Dr Gall, that experience indicated that unless a prisoner takes a proactive approach to his or her health while in prison, the prisoner’s health may deteriorate. It was in response to that proposition that the judge, in the passage that is the subject of ground 2, noted that her experience indicated that the health of some prisoners improves or at least stabilises because of better management of their medical needs and other lifestyle improvements in the closed environment of prison.[37] Having made that observation, the judge, in the next paragraph of her reasons, stated:

… I take the potential for a reduced life expectancy into account because of your conditions and that a term of imprisonment may negatively impact on your already compromised health.[38]

[37]Ibid [55].

[38]Ibid [56].

It is thus not clear that the judge did moderate the weight that she gave to the applicant’s health as a mitigating circumstance, by reason of her understanding of the work done by Justice Health. It is quite apparent that the impugned passage, in the judge’s reasons, constituted no more than a qualification by her to the view of Dr Gall that experience indicated that unless a prisoner takes a proactive approach to their health, the prisoner’s health might deteriorate. The judge did not state that, by reason of that circumstance, she reduced the weight that was given to the proposition that, by reason of the applicant’s ill-health, a sentence of imprisonment would be more onerous for him. Further, notwithstanding the judge’s qualification of the views expressed by Dr Gall, her Honour expressly stated that she took into account that a term of imprisonment might result in a reduced life expectancy and might negatively impact on the applicant’s already compromised health.

Accordingly, we are not persuaded that the judge materially reduced the weight that she gave to the applicant’s ill-health as a mitigating circumstance. If there was any reduction or diminution in the weight given to that circumstance, it is quite apparent that it was not other than minor.

Further, if the judge did, to any material degree, reduce or qualify the weight that she gave to the applicant’s ill-health as a mitigating circumstance, by reason of her observation that experience indicated that the health of some prisoners improves or stabilises in prison, we are not persuaded that it was impermissible for the judge to do so.

As counsel for the applicant acknowledged, in the course of the plea, when the applicant’s counsel discussed his health, the judge asked whether he took issue with her knowledge of evidence given by Justice Health in other cases, which is that that organisation manages a variety of serious and, in some cases, life-threatening conditions involving prisoners. In response, counsel then acting for the applicant did not object to the judge taking those matters into account. Instead, counsel, having noted that Justice Health had a duty of care and that it did the best it could, then turned to his next submission, which focused on the circumstance that by reason of the applicant’s ill-health a prison term would be more burdensome for him.

In that way, the judge sufficiently gave counsel the opportunity to address her on whether she was entitled to take into account evidence that she had heard from Justice Health in other cases, when considering the evidence of Dr Gall. It was Dr Gall who had raised the issue of the quality of health care which would be provided to the applicant during his term of imprisonment. In light of the response given by counsel, it was appropriate for the judge to take into account her knowledge that Justice Health had stated, in other cases, that they manage a variety of serious and sometimes life-threatening conditions involving prisoners.

For those reasons, if in fact the judge did take into consideration her knowledge of evidence given by Justice Health, concerning the management of prisoners with ill-health, in determining the weight to be given to the applicant’s ill-health as a mitigating factor, her Honour was entitled to do so.

It follows that ground 2 of the application for leave to appeal against sentence does not succeed.

Conclusions

For the foregoing reasons, we are not persuaded that the applicant has succeeded on either of the grounds contained in his notice of application for leave to appeal against conviction, or on either of his grounds contained in his notice of application for leave to appeal against sentence.

However, we consider that those grounds were sufficiently arguable to justify the grant of leave to appeal in relation to them. As we discussed earlier in these reasons, it would be appropriate to grant the application for an extension of time, if we were satisfied that the proposed grounds of appeal were sufficiently arguable.

Accordingly, in respect of the applications before us, we would make the following orders:

(1)The application by the applicant for an extension of time within which to file and serve a notice of application for leave to appeal against conviction and sentence is allowed.
(2)The applicant be granted leave to appeal on each of the grounds contained in his application for leave to appeal against conviction.
(3)The appeal against conviction is refused.
(4)The applicant be granted leave to appeal against sentence on both grounds contained in the application for leave to appeal against sentence.
(5)The appeal against sentence is refused.
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Citations

Mark Matthews v The Queen [2021] VSCA 20

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Charge on Indictment	Charge	Maximum Penalty	Sentence		Cumulation
2	Aggravated Burglary	25 years’ imprisonment	6 years’ imprisonment		Base sentence
3	Intentionally Cause Injury	10 years’ imprisonment	2 years’ imprisonment		3 months’ imprisonment
5	Intentionally Cause Injury	10 years’ imprisonment	2 years 3 months’ imprisonment		3 months’ imprisonment
7	Common Law Assault	5 years’ imprisonment	12 months’ imprisonment		6 months’ imprisonment
TOTAL EFFECTIVE SENTENCE				7 years’ imprisonment
NON-PAROLE PERIOD				4 years 10 months’ imprisonment
PRE-SENTENCE DETENTION DECLARED				30 days’ imprisonment
6AAA DECLARATION				Not applicable
OTHER RELEVANT ORDERS				Forfeiture Order 464ZF Sample ordered

[2021] VSCA 20

16 February 2021