Matthews v The Queen; New v The Queen - [2018] NSWCCA 186

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Matthews v R; New v R [2018] NSWCCA 186
Hearing dates: 13 August 2018
Date of orders: 27 August 2018
Decision date: 27 August 2018
Before: Macfarlan JA
Gleeson JA
Fagan J
Decision:
1. Leave to appeal is granted.
2. Appeal dismissed.

Catchwords: CRIME – appeal against sentence – supplying prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) – one count of possession of cannabis taken into account on Form 1 for applicant Matthews – three counts of possession and cultivation of cannabis taken into account on Form 1 for applicant New – applicant Matthews sentenced to 3 years imprisonment with non-parole period of 1 year 6 months – applicant New sentenced to 3 years imprisonment with non-parole period of 2 years – whether error in assessing objective seriousness – whether error in description of applicants as “facilitators of supply” above “street level users/dealers” in chain of supply – whether material misdescription of time period of offending – applicant New mother of two children aged 16 and 18 – whether fresh evidence for applicant New demonstrates exceptional hardship on her children as consequence of her incarceration – parity – whether justifiable sense of grievance on part of applicant Matthews – leave to appeal granted but appeal dismissed
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: R v Edwards (1996) 90 A Crim R 510
R v Girard [2004] NSWCCA 170
R v Linden [2017] NSWCCA 321
R v Macdonald; R v Maitland [2017] NSWSC 638
R v Shortland [2018] NSWCCA 34
R v Tuhakaraina [2016] NSWCCA 81
R v X [2004] NSWCCA 93
Reg v Wirth (1976) 14 SASR 291
Category: Principal judgment
Parties: Richard John Matthews (first applicant)
Nicola New (second applicant)
Regina (respondent)
Representation:
Counsel:
Ms Jane Paingakulam (first applicant)
Mr David Barrow (second applicant)
Mr Eric Balodis (respondent)
Solicitors:
Legal Aid Commission of New South Wales (first applicant)
T & S Law Firm (second applicant)
Office of the Director of Public Prosecutions (respondent)

File Number(s): 2016/273605 (first applicant)2016/271891 (second applicant)
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

15 November 2017

Before:

Wells SC DCJ

File Number(s):

2016/273605; 2016/271891

Judgment

MACFARLAN JA: I agree with Fagan J.
GLEESON JA: I agree with Fagan J.
FAGAN J: On 15 November 2017 the applicants Richard Matthews and Nicola New were sentenced by Wells DCJ in the District Court at Lismore for one offence each of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). They were sentenced together because the facts of their respective offences overlapped considerably and were interrelated. Each of the applicants (to whom I will refer by surname only, for brevity) pleaded guilty and each now seeks leave to appeal against severity of sentence.
The offences were committed between May and September 2016.…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] NSWCCA 186
Decision Date: 27 August 2018

CaseChat Overview and Summary

In the case of Matthews v The Queen and New v The Queen, the applicants sought to appeal their sentences imposed by the Supreme Court of New South Wales for supplying a prohibited drug, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Matthews was sentenced to three years imprisonment with a non-parole period of one year and six months for one count of possession of cannabis. New received the same sentence for three counts of possession and cultivation of cannabis. Matthews and New argued that there was an error in the assessment of the objective seriousness of their offending, a misdescription of their roles in the drug supply chain, and an incorrect representation of the time period of their offending. New further submitted that fresh evidence demonstrated exceptional hardship on her children as a result of her incarceration.

The High Court considered whether the applicants' arguments were valid. The Court examined whether the trial judge erred in assessing the objective seriousness of the offending and whether there was a material misdescription of the applicants' roles in the drug supply chain. The Court also assessed whether the applicants had established exceptional hardship due to New's incarceration. The Court determined that there was no error in the assessment of the objective seriousness or in the description of the applicants' roles in the drug supply chain. Additionally, the Court found that New had not demonstrated exceptional hardship on her children as a result of her incarceration. As for Matthews, the Court found no justifiable sense of grievance in his appeal.

The High Court dismissed the appeal but noted that leave to appeal had been granted. The Court found that the sentences imposed on both applicants were appropriate, taking into account the circumstances of their offending and the need for general deterrence. The Court held that there was no basis to interfere with the sentences imposed by the Supreme Court.

Orders