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 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 of 18 months imprisonment. For the offence of theft, I imposed a sentence of 10 months imprisonment.
These convictions constituted a breach of a Good Behaviour Order, which had been made on 23 January 2020 by the ACT Magistrates Court for the earlier offences of damaging property and trespass. Mr Mathews had been sentenced to six months imprisonment for the damaging property offence and fined for the trespass offence. The term of imprisonment was suspended and, hence, a Good Behaviour Order had also been made. I cancelled that Order.
I imposed part of the term of imprisonment because Mr Mathews had already served a portion in custody. I made the sentences of imprisonment partially concurrent and identified the period of accumulation. I indicated that the total sentence was one of 22 months. I also specified the commencement of the sentences, required under s 62 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) as I wished to take into account pre-sentence custody and, of course, was required to respect the principle of totality.
The sentences articulated are set out in R v Mathews [2020] ACTSC 364 at [68]-[75]. Unfortunately, my attention has been drawn to inconsistencies between the intended sentences and the imposed sentences as an error of law.
Thus, the sentence for burglary of 18 months imprisonment commenced on 1 June 2020, to take account of the pre-sentence custody since that date (R v Mathews at [69]). That meant that the sentence would end on 30 November 2021. I said, in sentencing, that the sentence for theft was to be cumulative as to two months (at [71]), but I stated that it commenced on 30 November 2021 (at [71]), which meant that it would end on 29 September 2022. That is wholly cumulative, not cumulative as to two months.
Finally, the sentence for damaging property, on re-sentencing following the cancellation of the Good Behaviour Order, was for three months, said to commence on 31 January 2022 and to end on 29 April 2022. That would be wholly concurrent with the sentence as specified for theft, though intended to be cumulative as to two months.
There was, then, a divergence from the actual sentence to the summary effect, namely, that the total sentence of imprisonment was intended and specified to be for 22 months (R v Mathews at [75]), when the actual sentence that was imposed would have been for 28 months. Thus, correction is needed.
Correction is available for errors such as these even in criminal proceedings under r 6906 of the Court Procedures Rules 2006 (ACT): see R v Gorman [2009] ACTSC 7. It is necessary to give notice to the parties (Elson v Ayton, Saliba and Slavin-Molloy [2010] ACTSC 70 at [86]) and I have done so. Both parties consented.
The clearest error is that of the starting date for the sentence for theft. While it is common and usually appropriate for a sentence of theft to be wholly concurrent on the sentence for burglary during the commission of which the theft was also committed (R v McMahon [2014] ACTSC 280 at [94]), there are exceptions and, indeed, as with all sentencing, there is no one correct sentence, only appropriate, adequate and just sentences (Williams v the Queen [2018] ACTCA 4 at [27]).
I note that, as I explained in R v Crawford (No 1) [2020] ACTSC 245 at [34], the level of concurrency between the sentences for burglary and theft will depend on the value of the property stolen, including any sentimental or similar value, and the inconvenience caused. In this case, as in, regrettably, many cases, I did not have any evidence of value, as opposed to the identity of the items stolen. There was, however, a laptop, a laptop charger and accessories. These are of clearly some reasonable value, though the precise amount, or even a range, is not entirely clear. There were also some coins, but no value was stated, though that should have been easy enough to state, and some pairs of sunglasses, which can range from quite cheap to very expensive, but no value was given either.
Nevertheless, there is a value of these items. It is a pity that, when speaking to the victim, as investigators must, they did not ask for some indication of value, or, if they did, that this information was not made available to the Court.
Other items stolen included a prescription and some medication. The latter would have some value and, of course, with the stolen prescription, would have caused inconvenience, possibly serious inconvenience. Similarly, of the wallets stolen, one contained some American banknotes of some unspecified value, one contained a card and one contained a photograph. The loss of all of these items would cause inconvenience, though no details were provided.
Instead, I was invited to rely on judicial notice. This is not entirely desirable when evidence may be relatively easily obtained, as such notice is a blunt instrument of assessment.
Nevertheless, these facts show that some cumulation of the sentence for theft with the sentence for burglary is appropriate, but by no means almost the whole of the former sentence, which the incorrect start date would have meant. Therefore, a sentence of 10 months imprisonment for the theft offence, with two months cumulative on the sentence for burglary, would commence on 1 April 2021 and end on 31 January 2022.
Then there is no reason for any concurrency between the sentences for the burglary and theft offences and the re-sentence on cancellation of the Good Behaviour Order, and, certainly, no valid reason for concurrency of one day. These should be wholly cumulative and, indeed, with the proposed amendment of the sentence for theft, the present sentence would achieve that with the amendment of the start date by one day.
For the re-sentence on the cancellation of the Good Behaviour Order to end on 30 April 2022, and so make the total sentence for 23 months and not for 23 months less one day, it should not commence on 31 January 2022 but on 1 February 2022. It would, however, mean that the sentence from 1 June 2020 to 30 April 2022 would be a sentence of 23 months, not 22 months as I had initially indicated (see above at [3]). Nevertheless, I have not actually increased this sentence but have actually reduced it, though to accord with my intention but not with the total number of months that I erroneously expressed.
This amendment, however, has a further consequence, namely that the Drug and Alcohol Treatment Order (the Treatment Order) needs also to be corrected. The Treatment Order is said to be for the whole of the sentence and stated to end on 31 March 2022. That view is clearly consistent with the previously stated total sentence of 22 months, but not with the actual end of the sentence, as intended, on 30 April 2022. I do not propose to change the length of the Treatment Order beyond 31 March 2022, but it leaves one month of the sentence not covered by the Treatment Order.
It is, however, required by s 80W of the Sentencing Act that the whole sentence be suspended. Further, s 12(3) of the Sentencing Act requires that, when suspending a sentence, any part other than that part covered by a Treatment Order must be subject to a Good Behaviour Order.
Thus, this part of the sentence is not a sentence that accords with the law. I can amend this under s 61 of the Sentencing Act by reopening the sentence and, after giving the parties the opportunity to be heard, make a sentence that is according to law. I have provided the parties that opportunity and will proceed accordingly. Thus, I will amend the Treatment Order to suspend the whole of the 23 months sentence to 30 April 2022 and amend the sentence to make a Good Behaviour Order for that month after the end of the Treatment Order.
Finally, I discussed last week some behaviour in which Mr Mathews was engaged in the early hours of the morning. There was no evidence of illegality that arose. Nevertheless, for a participant in a Treatment Order regime, there is a need for reasonable hours of sleep so that proper attention can be given to the treatment regime. In order to achieve that, I propose to make a curfew.
Accordingly, I order:
(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) Act2005 (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.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: Date: 21 September 2021 |
6
0