R v Mathieson

[2002] NSWCCA 97

CITATION:	Regina v Mathieson [2002] NSWCCA 97
FILE NUMBER(S):	CCA 60718/01
HEARING DATE(S):	27 February 2002
JUDGMENT DATE:	27 March 2002
PARTIES :	Crown - Applicant Steven Robert Mathieson - Respondent
JUDGMENT OF:	Sheller JA at 1; Grove J at 2; Simpson J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/71/0104
LOWER COURT JUDICIAL OFFICER :	Nicholson DCJ

COUNSEL :	D M L Woodburne (Crown/Appl) H Dhanji (Resp)
SOLICITORS:	S E O'Connor (Crown/Appl) D J Humphreys (Resp)
CATCHWORDS:	Crown appeal - 6 offences - one count of escape lawful custody - 5 offences committed whilst unlawfully at large - non-parole period - findings of fact not supported by evidence - sentences in total manifestly inadequate - respondent resentenced
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999
CASES CITED:	R v Thomson & Houlton [2000] NSW CCA 309; 49 NSWLR 383 R v Cartwright (1989) 17 NSWLR 243 R v Pearce [1998] HCA 57; 194 CLR 610 R v Ellis (1986) 6 NSWLR 603 R v Cameron [2002] HCA 6; unreported, 14 February, 2002
DECISION:	Ref para 33

60718/01

SHELLER JA
GROVE J
SIMPSON J

27 March 2002

REGINA v STEVEN ROBERT MATHIESON

Judgment

1 SHELLER JA: I agree with Simpson J.

2 GROVE J: I agree with Simpson J.

3 SIMPSON J: On 4 October 2001 the respondent pleaded guilty in the District Court to an indictment containing six charges. On 16 October 2001 he was sentenced. The Crown now appeals against the asserted leniency of the sentences imposed. The charges and the head sentences imposed were:

1) escape lawful custody: fixed term of imprisonment of nine months, commencing 21 January 2002;

2) steal motor vehicle: imprisonment for 22 and a half months, commencing 6 August 2001;

3) robbery in company: imprisonment for 11 months, commencing 6 August 2002;

4) robbery in company: imprisonment for 18 months, commencing 6 August 2002;

5) assault with intent to rob whilst armed with offensive weapon: imprisonment for 13 months, commencing 6 August 2002;

6) break, enter and steal: imprisonment for 12 months, commencing 6 August 2002.

4 Having imposed these sentences His Honour then said:

“In respect of all offences other than the escape, I fix a non-parole period of 15 months commencing on 6 August 2001 and expiring on 5 November 2002.
I order you be released to parole on that date pursuant to conditions.”


His Honour then proceeded to specify the conditions of parole.

The facts

5 In August 2001 the respondent was an inmate in the Mannus Correctional Centre, a minimum security prison. He had been in that unit since 15 May 2001, serving an 18 month term of imprisonment, in respect of which he was entitled to release on parole on 16 January 2002. In order to gain admission to Mannus the respondent had signed an undertaking pledging that he would not escape or attempt to escape, and acknowledging the adverse consequences to his prison classification if he did either.

6 Notwithstanding this undertaking, on the evening of 3 August 2001 the respondent and another inmate walked out of the Centre. Their purpose was to obtain cannabis and to return to the prison. They were met by a woman, Sharon McCullough, who drove both men to her home at Tumbarumba. Having obtained the cannabis the two prisoners returned to Mannus. However their departure had been discovered and the Centre was surrounded by law enforcement officers. The co-offender nevertheless returned to the prison. The respondent ran off and returned to McCullough’s address. The two then drove to Wagga Wagga. On the evening of 4 August the respondent stole a Holden Commodore that was parked and unattended in a residential street. He drove it to an isolated area where he removed four mag wheels and tyres and other saleable items. He then set the vehicle alight. He did this in order to avoid being identified by his fingerprints. This was the foundation for the second count in the indictment.

7 About 3 a.m. the following morning (5 August) the respondent and McCullough assaulted a young woman walking in the street and robbed her of her handbag. This was the foundation for the third count in the indictment. Half an hour later they similarly assaulted and robbed another young woman. McCullough threatened to stab this victim. This constituted the fourth offence. Half an hour later again the respondent, this time acting alone, and armed with a wheel brace, assaulted a young man and demanded money. The respondent threatened to split the victim’s skull open. When told the victim had no money the respondent ran off and the victim escaped. This constituted the fifth offence. That evening the respondent broke and entered a house and stole alcohol, watches and cheques. This was the foundation for the sixth count in the indictment.

8 The respondent used part of the proceeds of the robberies to purchase heroin which he used over the course of the day. He was arrested in the early hours of Monday 6 August. Initially he gave two false names to police before acknowledging his true identity. He was interviewed by police at the Wagga Wagga police station shortly after his arrest. He made full admissions in relation to all matters except the break, enter and steal offence. Indeed, concerning the robberies of the two women the respondent gave an account in which he accepted more responsibility for the attacks than was attributed to him by the victims. He did this, obviously, to protect McCullough. In fact, as his Honour subsequently found, McCullough was the more active party in the robberies of the two women, the first and second victims.

The subjective circumstances

9 The respondent was born on 8 July 1982. He was just nineteen at the time he committed these offences. The only previous offences on his record were those in respect of which he was serving the sentence for which he was in custody prior to his escape. These were six counts of break, enter and steal, one each of entering a building with intent to commit an indictable offence, one count of entering a building with intent to steal, one of take and drive a conveyance without consent, one of goods in custody and one of driving whilst unlicensed. For those offences he was sentenced to a total period of imprisonment of 18 months with a non-parole period of nine months. In accordance with s50 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) the respondent was automatically entitled to release on parole at the end of the non-parole period, 16 January 2002.

10 Information about the respondent’s background and circumstances was provided to the court in the form of a pre-sentence report. This revealed that the respondent was known to ACT Corrective Services under a pseudonym, although the nature of any offences with which he was there charged was not identified.

11 The respondent had a disrupted, unhappy childhood. His natural father left home when he was young and has made no contact. His mother, with whom he had a loving relationship, subsequently married twice, but violence was a feature of one or both of these relationships. The respondent’s first step-father used physical means of discipline on him. His mother appears to have used and abused drugs, both legal and illegal. The respondent ran away from home at the age of 10 and lived with his grandmother in the ACT for two years. He then became a State ward and lived in an institution for a time. He has had little education and little employment. He was reportedly expelled from school when in year 7 (according to the pre sentence report, this was in Perth). When the respondent was 14 years of age his mother was killed in a car accident.

12 He began using cannabis at the age of 12, and took up heroin and amphetamines after his mother’s death in 1997. On three occasions he has desisted from the use of drugs, once in 1998 when he lived with his step-father on a farm in Queensland, once in 1999 – 2000 when he attended a rehabilitation course for five months, and again in 2000 – 2001 when he was remanded in custody. He made a further attempt at rehabilitation in March – April 2001, but this was cut short by his imprisonment. The probation and parole officer who reported considered that his drug problem was serious.

13 The respondent gave evidence in the sentencing procedings. He gave an account of the robbery offences considerably different to the one he had given police when interviewed, on this occasion declining to accept major responsibility for the physical attacks. He said that he had been relieved to be arrested because the escapade was then over. He acknowledged the seriousness of his conduct and expressed regret for the victims. He gave some (somewhat elliptical) evidence about events in prison since his arrest. This was to the effect that he had been the victim of some disputes in the prison and had been the subject of violence. He proposed that on his release he would live with a couple in the ACT whom he described as foster-parents, and who, he said, had offered him employment.

Sentencing remarks

14 His Honour began his remarks on sentence on 16 October 2001. Before he had progressed very far he was interrupted by the respondent’s legal representative who had just received instructions that the respondent was prepared to give evidence against a co-offender (presumably McCullough). The proceedings were adjourned for a short time to enable more detailed information to be put before the court. A document detailing the respondent’s assistance became a confidential exhibit marked “E”. His assistance was perceived as significant because it was (in one case) the only, and (in the other robbery cases) the only direct, evidence to incriminate McCullough. The Crown Prosecutor at the sentencing proceedings expressly suggested that his assistance entitled him to a 20% discount on the sentence for the robbery offences. His Honour acceded to that suggestion. He then recommenced his sentencing remarks.

15 The sentencing judge made some important findings of fact. He declared himself satisfied that the account given by the respondent in evidence in relation to the relative participation of himself and McCullough was more accurate than that he had given to police in his interview. This finding was favourable to the respondent. His Honour said:

“The viciousness in the execution of the three robberies lies principally at the feet of McCullough. The offender’s capacity to be vicious fortunately seemed to waiver when challenged by the 21 year old male victim.”

and:

“Throughout the robberies and attempted robberies, this offender was really being dominated in the commission of these offences by McCullough.”

16 His Honour recounted the subjective circumstances. Importantly, he considered that there was some prospect of rehabilitation, referring specifically to the three periods during which the respondent had reduced his drug use. It is obvious that the sentencing judge considered that a long period of incarceration was likely to be counter-productive for the respondent, potentially destroying the prospect of rehabilitation. He observed that the respondent was “a very young 19 year old”, and that he had spent much of his time in the witness box in tears. He thought that the respondent was “not a hardened criminal”, but that “the process of desensitisation is occurring daily in prison”. He considered the respondent to be “naïve, lacking judgment through immaturity”, and “socially isolated with no real supporting family”. He accepted the respondent’s claimed remorse as genuine.

17 The judge determined that, for the plea of guilty, the respondent was entitled to a discount on sentence of 25% (R v Thomson & Houlton [2000] NSW CCA 309; 49 NSWLR 383); and in respect of the assistance, a further discount of 20% (R v Cartwright (1989) 17 NSWLR 243). The Crown has not contended that either the proposed discount of 25% for the pleas of guilty, or 20% for assistance, is excessive.

18 His Honour also made some findings of fact concerning the custodial consequences of the respondent’s escape. He did this while acknowledging that there was no evidence presented in this respect. He said:

“This means whilst he is in prison he can never graduate beyond a B security prison.

There was no evidence before me of what a B classified prison means, but I can take judicial notice, I think, that it is a fully secure prison. An inmate must always be within the walls of such a prison and can only leave such a prison in circumstances where he is escorted or supervised by Corrective Service officers or police.

Access to work release programs or study programs at external campuses is not available.

Inmates of such institutions are usually those convicted of the more serious offences or those who are making slower or no progress with their rehabilitation.
At the end of a sentence, movement from such an institution to civilian life, even civilian life on parole, is harder for the inmate than the staged release program through the C classifications available to those inmates who are not escapees.”

19 The judge found that special circumstances within s44(2) of the Sentencing Procedure Act existed justifying departure from the statutory proportion between the head sentence and the non-parole period. The special circumstances he identified as the respondent’s youth and immaturity, and the difficulty he will experience reintegrating into the community.

20 The judge correctly directed himself that he was obliged to bear in mind the principle of totality in passing sentence, and also the principles stated in R v Pearce [1998] HCA 57; 194 CLR 610 that is, that the sentence imposed in respect of each offence must be appropriate to that offence.

The Crown appeal

21 Three main arguments were advanced by the Crown. The first concerned the “global” non-parole period purportedly fixed by His Honour. Although counsel for the respondent attempted to support the specified non-parole period by proposing a construction of its terms that enabled it to fit with the head sentences, I am satisfied that the Crown’s argument is unarguably correct. No fewer than four of the five of the sentences which carried a non-parole period were specified to commence at a date later than 6 August 2001, the purported commencement date of each non-parole period. Further, the full terms of three of the sentences (those imposed with respect to the third, fifth and sixth counts) were for periods less than the fifteen months identified as the non-parole period.

22 What counsel for the respondent proposed was that the sentences could and should be interpreted in such a way as to specify a non-parole period of three months in relation to each of the robbery, assault and break, enter and steal charges. In my opinion such a construction is not available. The words used do not permit variation to such an extent.

23 However, counsel for the respondent also argued that, if the sentences require correction, the proper remedy is to remit the matters to the judge pursuant to s43 of the Sentencing Procedure Act. If this were the only error the argument would have some merit. But the Crown has argued that other errors infect the sentencing process. The Crown has argued that the sentences, in total, were manifestly inadequate to meet the seriousness of the crimes. In support of this argument the Crown has pointed to specific error, as well as to the sentences themselves, which, it argued, were patently inadequate for the circumstances.

24 One factual matter to which the Crown referred involved the passages extracted above concerning the consequences on the respondent’s classification of the escape. As observed above, the observations were made without direct evidence. In order to clarify this matter this Court accepted a letter from the “Inmate Classification and Case Management Branch” of the NSW Department of Corrective Services. The author of the letter provided some of the regulations governing administration of the sentences relating to security classification and escape risk classifications. The author explained that inmates subject to the escape legislation can progress to minimum security rating in accordance with Departmental classification policy. He proceeded to give a brief outline of the process whereby this might be done. In my opinion this correspondence establishes that the judge proceeded to sentence on the basis of a factual error. Further, as the Crown pointed out, the respondent had been made aware of the consequences of escape in the undertaking that he signed. The judge made no mention of this in the sentencing remarks.

25 Another error appears in relation to the application of the discounts already mentioned. By s23 of the Sentencing Procedure Act the sentencing court is permitted to reduce a sentence by reason of assistance to authorities. This provision gives statutory recognition to the principles developed in and subsequent to Cartwright. However, sub-s (2) requires the court to take into account certain matters; and, by sub-s (3), the court is enjoined not to impose a sentence that, by reason of the discount, would be unreasonably disproportionate to the nature and circumstances of the offence.

26 The total of the full terms of the six sentences imposed is two and a half years. The non-parole period, as imposed, expires on 5 November 2002. Since each sentence imposed was for a term of less than three years, by s50 of the Sentencing Procedure Act the sentencing judge was obliged to make an order directing the respondent’s release on parole at the end of the non-parole period. The judge made such a direction. The respondent would therefore be entitled to release on parole on 5 November 2002. The non-parole period in respect of the sentences to which he was subject at the time of his escape expires on 16 January 2002. They, too, being sentences of less than three years, the respondent was entitled (other sentences apart) to release on parole on that date.

27 As the Crown pointed out, all this means that, effectively, for all six offences the respondent was sentenced to a term that extends his existing sentence by 10 months. I accept the Crown’s submission that such a term is, in the circumstances, manifestly inadequate and of itself bespeaks error. The offence of escape has a particular seriousness because it was an escape from a minimum security establishment. This involved a breach of trust on the respondent’s part, and also has wider implications for the administration of Corrective Services facilities, potentially throwing into jeopardy beneficial and humanitarian custodial arrangements. It is unnecessary to comment further on the three offences of violence; I would simply observe that a term of imprisonment of 11 months and another of 18 months for offences as serious as counts 3 and 4 are, in each case, manifestly inadequate. So also is the sentence of 13 months in relation to count 5, the assault with intent to rob whilst armed with an offensive weapon.

28 It is, in my opinion, necessary that this Court set aside the sentences imposed and re-sentence the respondent. Against the possibility that the Court might take this course, affidavit evidence was admitted. The respondent deposed to his contrition about the offences and his plans for his future on his release. Those plans include ridding himself of his drug addiction and living with his step-father and his present wife and children in Queensland. He intends that his girlfriend will also live with the family. The availability of this accommodation to him was confirmed in affidavits sworn by his step-father’s wife, and a letter from his step-father. In my opinion the evidence affords confirmation of the sentencing judge’s assessment that the respondent does have prospects of rehabilitation and that this is an important time in his life in this respect. I am also conscious of the respondent’s youth and the unsatisfactory circumstances of his early life and adolescence. Also relevant to the re-sentencing process is that, in relation to two of the offences (the break, enter and steal and the car stealing) the prosecution had little or no evidence to support a conviction and it was the respondent’s admissions that enabled those prosecutions to proceed. For this he is entitled to consideration above and beyond that which ordinarily applies to a plea of guilty: R v Ellis (1986) 6 NSWLR 603. He is entitled to a separate and identified discount in relation to the assistance to the authorities that he has given: see Cartwright. Further, he is entitled to a reduction in sentence by reason of his willingness to facilitate the course of justice in pleading guilty: R v Cameron [2002] HCA 6; unreported, 14 February, 2002.

29 Finally, it is to be borne firmly in mind that these sentences are imposed following a successful Crown appeal, and that the sentences selected should therefore be at the lower end of the range which would otherwise be applicable.

30 One other minor matter should be corrected before I proceed to propose substitute sentences. Following his escape the respondent was at liberty for three days, until arrested on 6 August. The term of his current sentence was automatically extended by that period – that is, his release date would have been 19 January 2002: Crimes (Administration of Sentences) Act 1999, s254(1). By s57 of the Sentencing Procedure Act, the sentence for escape was required to commence on that date. The sentence imposed was specified to commence on 21 January 2002.

31 The sentences I propose would all commence on 19 January 2002 and be served concurrently. Although the sentences for the first count (escape) and the last (break, enter and steal) of, respectively 9 and 12 months, were relatively lenient, I would not interfere with either of those sentences, or the sentence of 22 1/2 months imposed for the larceny of a motor vehicle. Each of these sentences has already been discounted to take account of the plea of guilty and the assistance to authorities.

32 On each of the third, fourth and fifth counts I would begin with a head sentence of three years and nine months, having taken into account the reduction for four pleas of guilty. Reduction of this sentence by 20% pursuant to s23 results in a head sentence of 36 months. I would specify that these sentences are to commence on 6 August 2001. I would fix a non-parole period of one year and nine months. The respondent would be eligible for release on parole on 5 May 2003.

33 The formal orders I propose are:

1. Crown appeals in relation to the sentences imposed in respect of Counts 1,2, and 6 dismissed;

2. Crown appeals in relation to the sentences imposed in respect to Counts 3, 4 and 5 allowed; each of those sentences set aside;

3. in lieu thereof the respondent sentenced on each of those counts to a head sentence of 3 years and 9 months, commencing 6 August 2001, with a non-parole period of one year and nine months.

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