Matthews v The Queen
[2010] VSCA 177
•7 July 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0045
| BENJAMIN MATTHEWS | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | BUCHANAN and BONGIORNO JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 7 July 2010 |
DATE OF JUDGMENT: | 7 July 2010 |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 177 |
JUDGMENT APPEALED FROM: | R v Matthews (Unreported, County Court of Victoria, Judge Mason, 26 February 2010) |
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CRIMINAL LAW – Sentence – Aggravated burglary – Young offender – Rehabilitation – Failure to fix a minimum term.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr L R C Gwynn | Andrew George |
| For the Crown | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
Upon pleading guilty to a presentment containing a count of aggravated burglary, the appellant was ordered to serve a community-based order for a period of 12 months. Among the conditions imposed upon the appellant were that he perform 50 hours of unpaid community work, be supervised by a Community Corrections Officer, undergo assessment and treatment for alcohol and drug addiction, and undergo assessment for programs to reduce re-offending.
The circumstances giving rise to the commission of the offence were as follows. Melissa Sagers had been in a de facto relationship with the appellant which ended in July 2008. An intervention order was obtained by Ms Sagers against the appellant to protect her and her infant daughter born of her relationship with the appellant. On 2 November 2008, the appellant gained entry to Ms Sagers’ house by pulling fly wire from a kitchen window. One Adam Styles, a friend of Ms Sagers’, was present in the house. The appellant attacked Styles. It appears that the appellant’s conduct was as a result of a telephone conversation he had earlier in the day with Mr Sagers about their daughter.
The appellant is 22 years’ old. His parents separated when he was very young and the appellant lived with his mother. He had a disrupted secondary school education, being expelled from two schools. Since leaving school the appellant has had intermittent employment. A report tendered to the Court by a psychologist disclosed that the appellant had problems with alcohol and drug abuse. He was near the borderline in terms of intellectual functioning with an intelligence quotient of 73.
The appellant had 15 prior convictions from two court appearances including drug offences and damaging and destroying property.
The appellant breached the conditions of the community-based order by failing to comply with any of them. Section 47(3A) of the Sentencing Act 1991 provides that if a Court finds a person guilty of breach of a community-based order, it may cancel the order and deal with the offender for the offence with respect to which the order was made in any manner in which the Court could have dealt with the offender if it had just found him guilty of that offence.
The appellant was found guilty by a judge in the County Court of a breach of the community-based order. His Honour cancelled the community-based order and on the charge of aggravated burglary sentenced the appellant to a term of 12 months’ imprisonment.
The ground of the appeal is that ‘the learned judge erred by failing to set a minimum term and the sentence is manifestly excessive in the circumstances.’ Counsel for the appellant submitted that the sentencing judge fell into error by approaching his task as if there were a dichotomy between rehabilitation on the one hand and punishment and deterrence on the other. His Honour said:
Sentencing must embrace, but is not restricted to, two essentially competing factors; on the one hand punishment and deterrence and on the other hand rehabilitation and/or personal circumstances and the circumstances in which the offence was committed.
Counsel conceded that the statement was strictly correct. The factors were competing and were not the only factors to be taken into account in sentencing. Counsel went on, however, to contend that the sentencing judge fell into error in concluding that as rehabilitation in the form of the community-based order had failed, it was now time to sentence according to other sentencing objectives. Counsel referred to his Honour’s statement that:
Accepting that there is difficulty in applying the weight I otherwise did to rehabilitation, I now have time to give more serious regard to those other matters of sentencing which involve denunciation of the offence, general and specific deterrence and the protection of the community.
In his sentencing remarks, his Honour gave no reason for failing to fix a minimum term. When he pronounced the sentence, counsel for the appellant said it was open to the sentencing judge to impose a minimum term. His Honour replied:
I have considered the application of a minimum term and I do not propose to do so.
His Honour assigned no reason for his refusal.
The refusal to set a non-parole period was in effect a denial of the possibility of parole. The purposes of parole are to mitigate the burden of punishment and to provide that the rehabilitation of an offender by means of supervision by the Parole Board while the offender is in the community.[1]
[1]The Queen v Curry [1975] VR 647, 650 (Young CJ); Power v The Queen [1974] 131 CLR 623, 629 (Barwick CJ and Menzies, Steven and Mason JJ).
In the present case I do not think that the fact that the appellant failed to comply with the conditions of a community-based order meant that he could not benefit from a period on parole. His Honour said of the appellant that:
You do need rehabilitation and I think that is still a factor in your case.
The appellant’s rehabilitation was likely to be assisted by his supervision in the community by the Parole Board. His youth was also likely to render parole beneficial to him. Accordingly, I would fix a non-parole period. In fixing a non-parole period this Court is somewhat circumscribed by the provisions of s.11 of the Sentencing Act 1991, which provides so far as is relevant.
(2)If a Court sentences an offender to be imprisoned in respect of an offence for a term of less than two years but not less than one year, the Court may as part of the sentence fix a period during which the offender is not eligible to be released on parole.
(3)A non-parole period fixed under sub-section (1) or (2) must be at least six months less than the term of the sentence.
If the head sentence passed below stands, the non-parole period must be at least six months. I am reluctant to increase the head sentence, for I consider that anything more than 12 months would be excessive and the appellant may have to serve every day of that term.
Accordingly I would set aside the sentence passed below and in lieu thereof sentence the appellant to be imprisoned for a term of 12 months and fix a term of six
months before the appellant is to be eligible for parole.
BONGIORNO JA:
I agree.
BUCHANAN JA:
The orders of the Court will be as follows:
1. The appeal is allowed.
2. The sentence passed below is set aside and lieu thereof the appellant is sentenced to be imprisoned for a term of 12 months and it is ordered that the appellant serve a term of six months’ imprisonment before he is to be eligible for parole.
3. The order made in the County Court for the taking of a forensic sample is confirmed.
4. Pursuant to the provisions of s 6AAA of the Sentencing Act 1991, the Court declares the sentence to which the appellant would have been imprisoned but for the plea of guilty would have been a head sentence of 18 months’ imprisonment.
5. It is declared that a period of 171 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
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