R v Matthews - [2008] NSWCCA 54

New South Wales
Court of Criminal Appeal

CITATION: R v Matthews [2008] NSWCCA 54

HEARING DATE(S): 4 March 2008

JUDGMENT DATE:
10 March 2008

JUDGMENT OF: Mason P at 1; Mathews AJA at 2; Latham J at 3

DECISION: 1. The sentence imposed by Moore ADCJ on 9 October 2007 is set aside.
2. The matter is remitted to the District Court for expedited determination afresh by a different judge.

CATCHWORDS: SENTENCE - Crown appeal - Break, enter and commit serious indictable offence in company - resondent traverses his plea during cross-examination - Judge proceeds to sentence on erroneous basis - sentence set aside and matter remitted to District Court for re-determination - observations re manifest inadequacy of sentence imposed.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: R v Sharah (1992) 30 NSWLR 292
Tangye (1997) 92 A Crim R 545
Taufahema v The Queen [2006] NSWCCA 152 ; (2006) 162 A Crim R 152
R v Falls [2004] NSWCCA 335
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Seltsam Pty Ltd. v Ghaleb [2005] NSWCA 208

PARTIES: Applicant - Regina
Respondent - Shaun Harvey Matthews

FILE NUMBER(S): CCA 2007/00004695

COUNSEL: Applicant - N Norman
Respondent - A Francis

SOLICITORS: Applicant - S Kavanagh
Respondent - SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/0006

LOWER COURT JUDICIAL OFFICER: Moore ADCJ

LOWER COURT DATE OF DECISION: 9 October 2007

2007/00004695

MASON P
MATHEWS AJA
LATHAM J
10 MARCH 2008

R v SHAUN HARVEY MATTHEWS

Judgment

1 MASON P : I agree with Latham J.

2 MATHEWS AJA : I agree with Latham J.

3 LATHAM J : This matter came before the Court as a Crown appeal against the inadequacy of a sentence imposed upon the respondent by Moore ADCJ (the Judge) on 9 October 2007, with respect to a count of Aggravated Break Enter and Commit a Serious Indictable Offence, namely Armed Robbery, under s 112(2) of the Crimes Act 1900. The circumstance of aggravation relied upon was that the respondent was in the company of other persons. The offence may be briefly described as a “home invasion”. It carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years.

4 The respondent was sentenced to a non-parole period of 18 months, to date from 22 April 2007, expiring 21 October 2008, with a balance of term of 2 years and 3 months, expiring on 21 January 2011.

5 I am of the view that the Court cannot dispose of the appeal and that the matter must be remitted to the District Court under s 12(2) of the Criminal Appeal Act 1912, on the basis that the evidence given by the respondent at the sentence hearing, and the acceptance of that evidence by the Judge, does not support the respondent’s conviction. Notwithstanding the fact that the Crown appeal cannot be finally determined, it is appropriate to indicate that the sentence was manifestly inadequate,…

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 Matthews

Details

AGLC: R v Matthews [2008] NSWCCA 54
Case: [2008] NSWCCA 54
Decision Date: 10 March 2008

CaseChat Overview and Summary

In the matter of R v Matthews, the appellant, Matthews, was convicted by the District Court of breaking and entering a dwelling in the company of another and committing a serious indictable offence. Matthews appealed against the sentence imposed by the District Court, arguing that the sentence was manifestly inadequate. The Crown appealed against the order of the District Court quashing the conviction and ordering a retrial, contending that Matthews' plea of guilty should have been accepted by the court.

The primary legal issue before the court was whether the sentence imposed by the District Court was manifestly inadequate, and whether the conviction should stand despite Matthews' decision to traverse his plea during cross-examination. The court had to determine whether the District Court judge erred in proceeding to sentence Matthews on an erroneous basis, and whether the error was so significant as to warrant setting aside the sentence and remitting the matter to the District Court for re-determination.

The court held that the District Court judge erred in proceeding to sentence Matthews on an incorrect basis, as Matthews traversed his plea during cross-examination. The court found that this error was significant enough to set aside the sentence and remit the matter to the District Court for re-determination. The court noted that the sentence imposed by the District Court was manifestly inadequate and that the conviction should stand despite Matthews' decision to traverse his plea during cross-examination. The court observed that a sentence of imprisonment for a term of four years with a non-parole period of two years and eight months was manifestly inadequate in the circumstances of this case.

In light of the above, the court allowed the appeal by Matthews against the sentence imposed by the District Court, set aside the sentence and remitted the matter to the District Court for re-determination. The court did not address the Crown's appeal as it was not necessary to do so in light of its decision on the appeal by Matthews.

Orders