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Mattiussi v The King

Mattiussi v The King

Case [2023] NSWCCA 289 24 November 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Mattiussi v R [2023] NSWCCA 289
Hearing dates: 13 November 2023
Date of orders: 24 November 2023
Decision date: 24 November 2023
Before: Adamson JA (at [1])
Button J (at [2])
R A Hulme AJ (at [3])
Decision:
(1)   Leave to appeal granted and appeal allowed.
(2)   Quash the sentence imposed in the District Court on 9 September 2022 and in lieu, sentence the applicant to an aggregate term of imprisonment for 7 years and 6 months with a non-parole period of 5 years and 3 months.
(3)   The sentence is taken to have commenced on 15 November 2020.
(4)   The applicant will become eligible for release on parole upon the expiration of the non-parole period on 14 February 2026.

Catchwords:
CRIME – appeals – appeals against sentence – failure to backdate sentence to account for time served in pre-sentence custody – parties contributed to sentencing error in providing unnecessarily complicated pre-sentence custody information – error established – failure to sufficiently vary the statutory ratio upon finding special circumstances – adjustment reflects explicit intention – no error – non-parole period in years, months, and days – mathematical precision not required – appeal allowed – applicant re-sentenced

Legislation Cited:
Crimes Act 1900 (NSW), s 611
Crimes (Administration of Sentences) Act 1999 (NSW), ss 126 and 158
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 44 and 37

Cases Cited:
Aiken v R [2011] NSWCCA 208
Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
Caristo v R [2011] NSWCCA 7
Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336
Hamilton v R [2016] NSWCCA 59
Karpatsis v R [2013] NSWCCA 111
Kristensen v The Queen [2018] NSWCCA 189
R v Deng [2015] SASCFC 176
R v Ellmore [2002] NSWCCA 242
R v Fitzgerald v R [2018] NSWCCA 170
R v Mattiusi(No 3) [2022] NSWDC 406
Salafia v R [2015] NSWCCA 141

Category: Principal judgment
Parties: Matthew Mattiussi (Applicant)
Rex (Respondent)
Representation:
Counsel:
D Carroll (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Clover Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/145510
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2022] NSWDC 406

Date of Decision:

09 September 2022

Before:

Abadee DCJ

File Number(s):

2020/145510

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Matthew Mattiussi (the applicant) applied for leave to appeal against a sentence imposed on 9 September 2022 by his Honour Judge Abadee in the District Court.

An aggregate sentence of 7 years and 6 months with a non-parole period of 5 years, 3 months, 2 days was imposed for 2 counts of sexual intercourse without consent and 1 count of intimidate with intent to cause fear of physical harm. The offences are contrary to s 61I of the Crimes Act 1900 (NSW)…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mattiussi v The King

Details

AGLC: Mattiussi v The King [2023] NSWCCA 289
Case: [2023] NSWCCA 289
Decision Date: 24 November 2023

CaseChat Overview and Summary

In Mattiussi v The King, the respondent was convicted of multiple offences and sentenced to imprisonment. The primary issue on appeal was the failure of the original sentencing court to backdate the sentence to account for the time the respondent had already served in pre-sentence custody. Additionally, the court was required to consider whether the sentencing court had sufficiently varied the statutory ratio to reflect special circumstances. The respondent contended that the total non-parole period should be stated in years, months, and days.

The High Court began by examining the parties' contribution to the error in providing complex pre-sentence custody information. It found that both the prosecution and defence had contributed to the error, resulting in the sentencing court not adjusting the sentence to account for the time already served. The court also noted that while the sentencing judge identified special circumstances, the variation to the statutory ratio did not adequately reflect the explicit intention to give appropriate weight to those circumstances. However, the court held that mathematical precision in stating the non-parole period was not necessary. The appeal was allowed, and the respondent was re-sentenced with the sentence backdated to account for the time already served in pre-sentence custody.

Orders