R v Mathews (No 2) - [2021] ACTSC 185

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Mathews (No 2)
Citation:	[2021] ACTSC 185
Hearing Date(s):	5 March 2021
DecisionDate:	5 March 2021
Before:	Refshauge AJ
Decision:	1. Under r 6906 of the Court Procedures Rules 2006 (ACT): (a) I amend the sentence of 14 December 2020 by deleting the start date of the sentence for the offence of theft on 1 June 2020, namely 30 November 2021, and substituting 1 April 2021; and (b) deleting the start date for the sentence for the offence of damaging property, consequent upon the cancellation of the Good Behaviour Order made on 23 January 2020, namely 31 January 2022, and substituting 1 February 2022. 2. Under s 61 of the Crimes (Sentencing) Act 2005 (ACT), Order 11 of the sentence of 14 December 2020 is amended by deleting ‘22 months’ and substituting ‘23 months’, and by deleting ‘31 March 2022’ and substituting ‘30 April 2022’. 3. Also, under s 61 of the Crimes (Sentencing) Act 2005 (ACT), Joshua Mathews is required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT), from 1 April 2022 to 30 April 2022. 4. Under s 80ZH of the Crimes (Sentencing) Act 2005 (ACT), the Drug and Alcohol Treatment Order is amended by adding the following conditions: (a) Joshua Mathews is to be at his place of residence from 10 pm each day until 6 am on the next day; and (b) Joshua Mathews is to present himself at the door of his residence if requested by a police officer between 10 pm on any day and 6 am the next day. 5. Joshua Mathews is directed to attend the court registry to sign the amended Order and the Good Behaviour Order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft – Error in sentence – Amendment
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 6906 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 12(3), 61, 62, 80W, 80ZH
Cases Cited:	Elson v Ayton, Saliba and Slavin-Molloy [2010] ACTSC 70 R v Crawford (No 1) [2020] ACTSC 245 R v Gorman [2009] ACTSC 7 R v Mathews [2020] ACTSC 364 R v McMahon [2014] ACTSC 280 Williams v the Queen [2018] ACTCA 4
Parties:	The Queen ( Crown) Joshua James Mathews ( Offender)
Representation:	Counsel D Perks ( Crown) C Duffy ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number(s):	SCC 151 of 2020

REFSHAUGE AJ

On 14 December 2020, I sentenced Joshua Mathews for an offence of burglary, committed on 1 June 2020 at a suburban residence in Canberra, and for an offence of theft of various items from that property. On his plea of guilty to these offences, I convicted him of each of them. For the offence of burglary, I imposed a sentence…

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 R v Mathews (No 2)

Details

AGLC: R v Mathews (No 2) [2021] ACTSC 185
Case: [2021] ACTSC 185
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory was called upon to correct an error in the sentence of Joshua James Mathews, who had been convicted of burglary and theft. Mathews had been sentenced on 14 December 2020, following his guilty pleas to these offences. The court's attention was drawn to inconsistencies between the intended sentences and the imposed sentences, which amounted to an error of law. The primary legal issue before the court was whether the error in sentencing could be corrected under the relevant legislation.

The court found that correction of the sentence was possible under rule 6906 of the Court Procedures Rules 2006 (ACT). The court had to consider the intended sentence, the actual sentence imposed, and whether the error was significant enough to warrant correction. The court also had to consider whether it was necessary to give notice to the parties, as required by law. Both parties consented to the correction.

The court found that the starting date for the sentence for theft was incorrect, and that the sentences for burglary and theft should not be wholly concurrent. Instead, there should be some cumulation of the sentence for theft with the sentence for burglary. The court amended the start date for the sentence for theft to 1 April 2021, and the start date for the sentence for damaging property to 1 February 2022. The court also amended the length of the sentence to 23 months, and the end date of the sentence to 30 April 2022. The court further amended the Drug and Alcohol Treatment Order and imposed a curfew on Mathews.

The court's reasoning was based on the need to achieve a sentence that was appropriate, adequate, and just. The court considered the value of the stolen property and the inconvenience caused to the victim. The court also considered the need for Mathews to comply with the Drug and Alcohol Treatment Order and to have reasonable hours of sleep. The court's outcome was to correct the error in sentencing and to impose additional conditions on Mathews to ensure his compliance with the Treatment Order.

In conclusion, the court corrected the error in sentencing and imposed additional conditions on Mathews to ensure his compliance with the Drug and Alcohol Treatment Order. The court's decision was based on the need to achieve a sentence that was appropriate, adequate, and just, and to ensure Mathews' compliance with the Treatment Order. The final orders of the court are set out in the decision.

Orders