Matu v The Queen

[2019] NSWCCA 23

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Matu v R [2019] NSWCCA 23
Hearing dates:	17 October 2018
Date of orders:	15 February 2019
Decision date:	15 February 2019
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [2]; Price J at [3]
Decision:	(1)   Leave to appeal granted. (2)   Appeal allowed. (3)   The aggregate sentence passed in the District Court is confirmed, but is directed to commence on 25 May 2016. Accordingly, that sentence will comprise a non-parole period of 4 years 6 months, commencing on 25 May 2016 and expiring on 24 November 2020, and a balance term of 2 years 6 months, commencing on 25 November 2020 and expiring on 24 May 2023.
Catchwords:	CRIME – appeal against sentence – supply of 3,4 methylenedioxymethamphetamine in not less than a large commercial quantity – supply of cocaine in not less than an indictable quantity – aggravating and mitigating factors – generic statement of principle – whether aggravation regarding financial reward taken into account – whether aggravation regarding a series of criminal acts taken into account – whether as a whole reasons are proper and adequate   CRIME – appeal against sentence – arithmetical error – commencement date of sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Drug Misuse and Trafficking Act 1986 (NSW), s 25
Cases Cited:	Assam v R [2019] NSWCCA 12 DBW v R [2007] NSWCCA 236 Hudson v R [2016] NSWCCA 278 Kassoua v R [2017] NSWCCA 307 Lee v R [2016] NSWCCA 146 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40 Wat v R [2017] NSWCCA 62
Category:	Principal judgment
Parties:	Lopeti Joshua Matu (Applicant) Regina (Respondent)
Representation:	Counsel: J Paingakulam (Applicant) B Hatfield (Respondent)   Solicitors: Swifte Law (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/161072
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 17 November 2017 Before: King SC DCJ File Number(s): 2016/161072

Judgment

1. BATHURST CJ: I agree with the orders proposed by Price J and with his Honour’s reasons.

2. HOEBEN CJ AT CL: I agree with Price J and the orders which he proposes.

3. PRICE J: Lopeti Joshua Matu (“Matu”) pleaded guilty in the Local Court to the following offences:

1. Count 1: between the 4th day of March 2016 and the 6th day of April 2016 did supply a large commercial quantity of a prohibited drug, namely 2.417 kilograms of 3,4 methylenedioxymethamphetamine (“MDMA”) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMTA”). The maximum penalty for this offence is life imprisonment and/or 5,000 penalty units. A standard non-parole period of 15 years has been prescribed.

2. Count 2: between the 21st day of March 2016 and the 7th day of April 2016 did supply 115.38 grams of cocaine, contrary to s 25(1) of the DMTA. This was more than the indictable quantity of cocaine. The maximum penalty for this offence is 15 years imprisonment and/or 2,000 penalty units. There is no standard non-parole period.

4. Matu adhered to his pleas upon arraignment in the District Court. He was sentenced by King SC DCJ to an aggregate term of imprisonment of 7 years with a non-parole period of 4 years 6 months commencing 26 May 2016.

5. The judge had indicated the following sentences:

1. Count 1: s 25(2) of the DMTA – 6 years imprisonment with a non-parole period of 4 years; and

2. Count 2: s 25(1) of the DMTA – 3 years 6 months imprisonment.

6. Matu was sentenced at the same time as Azhar Abdul, Lyle Assam and Lecx Purdie.

7. Matu seeks leave to appeal his sentence on the following grounds:

“Ground One: The sentencing judge erred in his Honour’s assessment of the aggravating factors pursuant to section 21A(2) of the Crimes (Sentencing Procedure) Act 1999.

Ground Two: The sentencing judge erred in setting the commencement date for [Matu’s] sentence.”

Factual background

8. The facts relevant to Matu’s involvement with Abdul in the supply of the large commercial quantity of MDMA are detailed in Assam v R [2019] NSWCCA 12 at [18]-[41]. Paragraphs [42]-[64] detail his involvement in the supply of the indictable quantity of cocaine.

Matu’s subjective case

9. Matu did not give evidence before the judge; however, written material was placed before him which included a report of Dr Olav Nielssen, a psychiatrist; a report of Dr Sathish Dayalan, a forensic psychologist; and a pre-sentence report. Oral evidence was also given by Matu’s mother, Veronica Fraser.

10. Matu was born in Sydney on 1 July 1995. He was 20 years old at the time of offending and 22 years old when sentenced. He reported to Dr Dayalan that he had a good childhood and denied any history of abuse or trauma. He completed his Year 10 schooling in 2011 and then obtained an apprenticeship in gyprocking which continued for three years. He told Dr Dayalan that he had to discontinue his employment as he became mentally unwell. Prior to his arrest, he was living with his father and brother in Umina. He was single, unemployed and in receipt of the Disability Support Pension.

11. Dr Dayalan noted that Matu had a history of delusional beliefs and auditory hallucinations that had been ongoing for more than two years. Dr Dayalan opined that Matu’s history and presentation was consistent with a diagnosis of paranoid schizophrenia which appeared to be treatment resistant. His history also supported a diagnosis of cannabis and stimulant use disorder which appeared to be in remission in a controlled environment.

12. Matu told Dr Nielssen that he began smoking cannabis at the age of 13 or 14 and that he took a lot of MDMA when he was younger. He reported that at the age of 19 or 20 years he was admitted to a psychiatric inpatient facility at Gosford Hospital for one week. He stated that the admission had been preceded by a week of use of amphetamines and cannabis, and exacerbation of his psychotic symptoms. He told Dr Nielssen that after that admission he stopped smoking cannabis. No history of alcohol abuse was reported, and he denied using any drugs in the period following his arrest.

13. Dr Nielssen made a diagnosis of chronic partly treatment resistant schizophrenia and substance use disorder in remission. He considered that Matu had reasonable prospects for rehabilitation despite the severity of his mental illness.

14. The author of the pre-sentence report was of the opinion that Matu’s illicit drug use did not contribute to his offending behaviour, however, he was in a vulnerable and naïve position when he became involved in the offences. She reported that Matu had accepted responsibility for his actions but noted there was a limited level of acknowledgement of criminal activity on his behalf.

15. Matu’s prior criminal history was confined to an offence in 2016 for driving a vehicle with an illicit drug present in his blood for which he was fined and disqualified from driving.

16. In an affidavit, Veronica Fraser, referred to her son’s upbringing, his mental health and his remorse following his offending. Matu told his mother that he realised the seriousness of his offending and regretted his decisions. He said that he did not wish to hurt anyone. In her oral testimony, Ms Fraser said that on his good days, her son showed very much remorse, had become well and was stable.

17. Four character testimonials were tendered, which detailed Matu’s positive attributes, but did not contain any comments as to his history of prohibited drug use.

The proceedings on sentence

18. The written submissions on sentence provided to the judge by counsel for Matu included the following submission in relation to relevant aggravating factors pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSPA”):

“It is submitted the only aggravating factors which may be relevant to [Matu] are:

1)   Offences were part of an organised criminal activity – 21A(2)(n)

Although this must be tempered by the offender’s limited role and the shortness of the period of involvement.” (Emphasis added.)

19. In oral submissions, Matu’s counsel referred to his written submissions and asked the judge if there was anything which his Honour would particularly wish him to address. His Honour declined that invitation.

20. As to aggravating factors, the Crown made the following submissions:

“CANTOR: …Your Honour, in terms of aggravating factors, the Crown relies on ‘(m) a series of criminal acts; (n) planned or organised; and (o) committed for financial gain’ receiving $1,000 a week.” [1]

1. Tcpt, 4 September 2017, p 54

21. Matu’s counsel responded by submitting to the judge that Matu was being sentenced for offences committed between 4 March 2016 and 6 May 2016 and to use material that suggested Matu was a driver prior to that was inappropriate. Another submission was that whilst there was planning, it would not be other than normally expected for matters of this kind. It appears that these submissions were directed to ss 21A(2)(m) and (n). Counsel did not address the remaining aggravating factor asserted by the Crown.

22. Section 21A(2) of the CSPA so far as is relevant, is as follows:

(2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

(m) The offence involved multiple victims or a series of criminal acts,

(n) The offence was part of a planned or organised criminal activity,

(o) The offence was committed for financial gain,

…

Some findings by the judge

23. In his sentencing remarks, the judge accepted that Matu was appropriately described as a “runner” or “driver” delivering drugs as directed, collecting the payments and returning them to others. His Honour observed that it appeared that Matu was not paid some share of any individual sale, but a weekly retainer of $1,000 for any delivery within the week. His Honour found that Matu was aware that he was delivering from time to time large quantities of prohibited drugs and collecting very substantial cash payments for them. However, his Honour said that Matu’s taking such a substantial risk to himself for a weekly retainer of $1,000 tended to indicate “a ‘certain degree of naïveté’ and some lack of appreciation of the seriousness of the conduct”. [2]

    2. ROS, 53.

24. Another finding made by the judge was that Matu was “clearly a highly trusted part of a sophisticated drug distribution network, knowing exactly what he was doing”. [3] His Honour noted that Matu had been trusted to communicate by encrypted Blackberry but accepted that after deployments on 25 May 2016, Matu ceased participating in the distribution voluntarily, and subsequently Abdul was using the Blackberry previously used by Matu.

    3. ROS, 54.

25. The judge discounted each of the indicative sentences by 25 per cent for the utility of the pleas of guilty. Towards the end of his sentencing remarks, the judge said:

“For the purposes of sentencing I have regard to section 3A of the Crimes (Sentencing Procedure) Act 1999 and the aggravating and mitigating factors outlined in section 21A(2) and (3) of the Act as are present. In sentencing an offender, the sentence must reflect the objective seriousness of the offence, and a sentencing judge must fix a sentence that reflects all of the circumstances of the offence including the need for general deterrence and specific deterrence, and meet the fundamental purpose of punishment, the protection of society.” [4] (Emphasis added.)

4. ROS, 61.

26. His Honour found that whilst there may have been some naiveté, Matu’s mental health was not a cause of his conduct. His Honour accepted that there was some prospect of rehabilitation if Matu adhered to treatment in relation to his mental health issues and ceased the use of prohibited drugs, which have an adverse impact on his mental health issues. His Honour accepted the assessment of Matu being at a low to medium risk of reoffending.

Ground 1: The sentencing judge erred in his Honour’s assessment of the aggravating factors pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999

Argument

27. Matu pointed to the submissions made to the judge on his behalf and by the Crown (see [18]-[19] above). He referred to the generality of the statement made by the judge, that he had regard to “the aggravating and mitigating factors outlined in s 21A(2) and (3) … as are present” (see [25] above) and submitted that it was not apparent whether the judge accepted the Crown’s submissions, or something in between the two, and his Honour did not give any reasons for his decision. Matu adverted to Lee v R [5] (“Lee”) and argued that the failure to give proper reasons is an error of law.

    5. [2016] NSWCCA 146.

28. Matu referred to Wat v R [6] (“Wat”). Matu submitted that far from being a financial gain which was more than might be expected in the lowest level of offending for this type of offence, his Honour found that such a financial return tended to indicate “a certain degree of naiveté and some lack of appreciation of the seriousness of his conduct”. [7] That is, his Honour found the financial gain to be less than might be expected for this type of offence. In those circumstances, s 21A(2)(o) did not apply as an aggravating factor in respect of Count 1. However, Matu argued that the Crown’s submission to the judge was put on the basis of his retainer and this Court could not be satisfied that his Honour did not apply s 21A(2)(o) as an aggravating factor.

    6. [2017] NSWCCA 62.

    7. ROS, 53.

29. In oral argument, Matu’s counsel submitted that the nub of Matu’s complaint was that his Honour did not make it clear which aggravating factors (if any) he took into account.

30. Matu argued that his case could be distinguished from Kassoua v R [8] (“Kassoua”) on two bases. First, he does not assert that there was some undisclosed matter that was given significant weight. In this case, there were specific submissions before the judge about which aggravating factors operated on sentence and the positions were distinctly different. Second, there was no factual dispute as to whether Matu undertook the offending for financial gain.

    8. [2017] NSWCCA 307.

31. The Crown contended that there is no obligation on the judge to give reasons when a matter advanced by the Crown is not accepted and that the judge’s comments as to financial reward were taken into account only in terms of objective seriousness.

32. The Crown distinguished Lee on the basis that the decision in that case concerned a plea of guilty which was described as a “mandatory consideration” that should be addressed in the reasons for sentence.

33. The Crown submitted that it is purely speculative to infer from the absence of reference to financial motive in the remarks on sentence that the judge took that factor into account as a circumstance of aggravation. The Crown made reference to Kassoua, and argued that the reference as to the financial gain of Matu was with reference only to the objective seriousness of the offending.

Consideration

34. Matu’s complaint focusses upon the judge’s generic statement towards the end of the sentencing remarks for Matu, Assam, Abdul and Purdie:

“For the purposes of sentencing, I have regard to…the aggravating and mitigating factors outlined in s 21A(2) and (3) of the [Crime (Sentencing Procedure) Act 1999] as are present.” (See [25] above.)

35. The difficulty with such a generic statement, described by Walton J in Kassoua as a “boiler plate” statement, is that it does not illuminate for the parties the relevant factors of aggravation and mitigation that have been taken into account by a sentencing judge. Over many years, this Court has made it clear that what is required “is a clear identification of the relevant factors, the weight given to them and their role in the structuring of the sentencing order…”[9]

    9. R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40 (Wood CJ at CL).

36. In DBW v R, [10] Spigelman CJ said at [36]:

“The obligation to give reasons requires a sentencing judge to identify which matters may have been taken into account.”

10. [2007] NSWCCA 236.

37. More recently, in Hudson v R [11] RA Hulme J referred to the following generic statement in a judge’s sentencing remarks at [71]:

“‘Where relevant I take into account any aggravating features and mitigating features as set forth in the provisions of s 21A of the Crimes (Sentencing Procedure) Act.’” (Emphasis added.)

11. [2016] NSWCCA 278.

38. His Honour observed at [72]:

“Such a statement is meaningless; it conveys nothing to the offender, the community, or this Court about what has been taken into account and what significance it had in the assessment of sentence. The use of such a formulation has been criticised by this Court since at least 2005: see the judgment of Bellew J in R v RMW [2016] NSWCCA 211 and the examples he cited at [45]-[48]. As Wood CJ at CL observed in R v Mills [2005] NSWCCA 175; 154 A Crim R 40 at [39], ‘more is expected than mere lip service to the legislation.’”

39. The rationale for reasons in sentencing judgments was examined in Lee by Basten JA and McCallum J. Their Honours referred to the importance of transparency and the provision of “an explanation of how issues in dispute were resolved and why they were resolved in a particular way.”[12]

    12. Lee [2016] NSWCCA 146 at [34].

40. Their Honours said at [26]:

“Two propositions may be derived from this reasoning. First, the failure to give proper reasons is an error of law. Secondly, the reasons must be adequate to demonstrate the absence of a real ‘possibility’ that the judge failed to apply correct legal principle. In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied.”

41. In this Court, the Crown sought to confine the principles in Lee to a guilty plea which a sentencing judge must take into account when passing sentence. [13] The Crown argued that a guilty plea is a mandatory consideration whereas the same could not be said for every factor referred to in s 21A. However, a court is obliged to take into account aggravating factors and mitigating factors that are relevant and known to the court when determining the appropriate sentence. [14] In any event, the requirement for proper and adequate reasons is a principle of universal application.

    13. Crimes (Sentencing Procedure) Act 1999 (NSW) s 22(1)(a).

    14. Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(1)(a)-(b).

42. The use of a generic statement by a sentencing judge will not necessarily lead to the conclusion that the reasons, when considered as a whole, were inadequate or to the real possibility that the sentencing judge failed to apply correct legal principle.

43. In DBW, the sentencing judge referred generically to the provisions of s 21A but did not indicate how he had considered matters of aggravation. The Crown had submitted that substantial harm would be caused to the victims which was an aggravating factor within s 21A(2)(g). In dismissing the appeal, Spigelman CJ (Simpson and Harrison JJ agreeing) said at [37]-[38]:

“[37] But in my opinion, there is no proper basis for the inference in this case that his Honour must have accepted the Crown submissions of substantial harm. I am not minded to follow the observations of Hunt AJA said in Wilson at [42] what would ‘usually’ occur in an appellate court in this regard. This Court should not infer that his Honour did act on the basis of the submissions of substantial harm but failed to state his reasons.

[38] In any event, I should observe that his Honour would have been entitled to act on the basis that there was a substantial harm.”

44. In Kassoua, King SC DCJ used the same generic statement as in the present appeal in his sentencing remarks. One of the grounds of appeal was that there was a failure to state the aggravating factors under s 21A(2) of the CSPA and in particular whether the offence was found to have been committed for financial gain. An issue during the sentencing proceedings was whether the applicant’s evidence that he expected no reward or benefit for his participation in either holding approximately 9 kilograms or assisting in the delivery of 1 kilogram of methylamphetamine could be accepted. The judge rejected the applicant’s evidence and pointed to the very significant role he had played in the supply of the methylamphetamine. His Honour concluded that the applicant must have had an expectation of a substantial benefit or reward.

44. The prosecutor had submitted to the judge that the offence was aggravated by financial gain relying on s 21A(2)(o) of the CSPA. The applicant contended that there was no evidence as to whether the financial gain was more than might be expected in “the lowest level of offending for this type of offence”.

45. For this submission, reliance was placed on the following passage of the judgment of this Court in Wat:[15]

“For an offence of knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug contrary to s 25(2) of the DMT Act, it will almost inevitably be the case that inherent characteristics of that class of offence are a level of planning and financial gain. These inherent characteristics are not to be treated as aggravating factors, unless ‘the financial gain or the planning is significant, that is, more than might be expected in the lowest level of offending for this type of offence’ Prculovski v R [2010] NSWCCA 274 at [43] (Howie AJ, McClellan CJ at CL agreeing); Farkas v R (2014) 243 A Crim R 388; NSWCCA 141 at [62] (Campbell J, RA Hulme J agreeing).”

15. [2017] NSWCCA 62 at [44] (per Price J, Bathurst CJ and Walton J agreeing).

47. In dismissing the appeal, Walton J rejected the submission that the judge found that the aggravating factor under s 21A(2)(o) was made out. Rather, an adverse finding was made in relation to the applicant’s evidence that he did not expect to receive any benefit or reward for his participation in the offending. Walton J said at [61]:

“It follows that there was no short fall in reasons provided in the sentencing judge’s general remarks … as to aggravation due to financial reward as his Honour made no determination of that kind in his judgment. In the absence of a contention that his Honour had regard to some other factor in aggravation (without a sufficiency of reasons), this ground of appeal becomes one of a hollow complaint that the ‘boiler plate’ remarks were made without a statement of reasons in circumstances where the remarks had no connection to an adverse finding (via aggravation).”

48. Basten JA said that the approach taken by the judge in determining the level of objective seriousness was to have specific regard to a range of elements, including the role played by the applicant, the amount of the drug, the value of the drug and the inference of financial reward, if indeterminate. His Honour considered that approach was entirely correct and rejected the applicant’s complaint of inadequate reasons. [16]

    16. Kassoua [2017] NSWCCA 307 at [15].

49. As to the “generic” statement, Basten JA said that the judgment would have stood without the sentence in question, but its inclusion lead to uncertainty. However, reading the judgment as a whole, it was clear that the judge dealt with the issues raised by the case comprehensively and with some care. [17]

    17. Kassoua [2017] NSWCCA 307 at [6].

50. In Kassoua and in the present case, there were specific submissions before the judge about factors of aggravation. However, unlike Kassoua, there was no factual dispute as to whether Matu participated in the supply of MDMA and cocaine for reward.

51. It was common ground before the judge that an aggravating factor in Matu’s offending was that it was part of a planned or organised criminal activity,[18] but Matu did not concede that other aggravating factors to be taken into account by the judge in determining the appropriate sentence were that the offence involved “a series of criminal acts”[19] or was committed for financial gain. [20] Notwithstanding the judge’s generic statement that he had regard to “the aggravating…factors in s 21A(2)”, the question remains as to whether his Honour gave proper reasons and those reasons demonstrated the absence of a real “possibility” that his Honour failed to apply correct legal principle.

    18. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(n).

    19. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(m).

    20. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(o).

52. Upon the approach taken by this Court in Wat, it would be an error for the judge to consider that Matu’s weekly retainer of $1,000 was an aggravating factor as the financial gain was not significant, that is more than might be expected in the lowest level of offending for an offence contrary to s 25(2) of the DMTA.

53. The judge’s findings included the role that Matu played in the supply; the extent of his knowledge; the financial reward that he received and that he was a “highly trusted part of a sophisticated drug network”. [21] All of these findings were made in determining the level of objective seriousness of the offences. Having determined that Matu was receiving a weekly retainer of $1,000, the judge said:

“That he was taking such a substantial risk to himself in such circumstances for a weekly retainer of $1,000 does tend to indicate a certain degree of naiveté and some lack of appreciation of the seriousness of his conduct.” [22]

21. ROS, 54.

22. ROS, 53.

54. It is evident from these remarks that his Honour, an experienced sentencing judge, considered that Matu’s retainer was less than might be expected for the part he played in the supply of the prohibited drugs and plainly indicates that the judge did not regard the weekly retainer as an aggravating factor. Furthermore, there is nothing to suggest that he acted upon the Crown’s submissions that an aggravating factor was that the offence involved a series of criminal acts.

55. In my opinion, his Honour’s reasons when considered as a whole, demonstrate the absence of a real “possibility” that he failed to apply correct legal principle and refutes Matu’s complaint that they were inadequate. This ground of appeal has not been established.

Ground 2: The sentencing judge erred in setting the commencement date for Matu’s sentence

56. The Crown concedes that Matu’s sentence should have commenced on 25 May 2016, which was the day of his arrest and not on 26 May 2016. The judge in his sentencing remarks noted that Matu had been in custody since his arrest on 25 May 2016 “and only in relation to this matter”. [23] His Honour inadvertently commenced the sentence “from the date of [Matu’s] arrest on 26 May 2016”. [24]

    23. ROS, 51.

    24. ROS, 62.

57. As this is an arithmetical error, it is not necessary to exercise the sentencing discretion afresh. [25] The sentence will be adjusted to reflect the correct commencement date.

    25. Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72].

58. I uphold this ground of appeal.

Orders

59. I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. The aggregate sentence passed in the District Court is confirmed, but is directed to commence on 25 May 2016. Accordingly, that sentence will comprise a non-parole period of 4 years 6 months, commencing on 25 May 2016 and expiring on 24 November 2020, and a balance term of 2 years 6 months, commencing on 25 November 2020 and expiring on 24 May 2023.

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Endnotes

Amendments

15 February 2019 - para format software correction

Decision last updated: 15 February 2019