R v Matthews - [2008] SASC 259

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MATTHEWS
[2008] SASC 259
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Kelly)
26 September 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence - appellant pleaded guilty to one count of aggravated robbery - sentenced to 4 years 5 months and 3 weeks imprisonment with a non-parole period of 2 years 11 months and 3 weeks - whether the non-parole period was manifestly excessive - whether the sentencing judge erred in failing to give effect to his stated intention to fix a "lower than usual non-parole period".
Held: Appeal allowed - in light of sentencing judge's stated intention and mitigating personal factors, there was an error in the fixing of a non-parole period which represented two thirds of the head sentence - non-parole period reduced to 2 years 5 months and 3 weeks imprisonment.

R v MATTHEWS
[2008] SASC 259
Court of Criminal Appeal: Duggan, Anderson & Kelly JJ

DUGGAN J: I agree that the appeal should be allowed. I also agree with the orders proposed by Kelly J and the reasons prepared by her.
ANDERSON J: I also agree that the appeal should be allowed. I agree with the orders proposed by Kelly J and with her reasons.
KELLY J: The appellant, Jason Robert Matthews appeals against a sentence imposed in the District Court for one count of aggravated robbery. The appellant, in company with another person and whilst armed with a metal pole held up a Blockbuster video store at Gawler and stole $300 from the attendant. While the other man engaged the store attendant in conversation, the appellant demanded money from the attendant. When leaving the store the appellant kicked and damaged the entrance door.
The robbery was captured on video surveillance camera. Initially the appellant said he could not remember anything which occurred on the night of the robbery, however when shown the video surveillance footage, he said it must have been him who committed the offence.
At arraignment on 29 October 2007 the appellant pleaded guilty. The Learned sentencing judge imposed a head sentence of 4 years 5 months and 3 weeks with a non-parole period of 2 years 11 months and 3 weeks. The judge indicated that he was allowing a discount of 25 percent on account of the appellant’s early guilty plea. He also took into account a period of 7 days spent in custody in respect of the offence.
Two principal arguments were put on the appellant’s behalf upon this appeal. First, it was submitted that the non-parole period fixed as a proportion of the head sentence was manifestly excessive. Second, it was contended that there was an error in the sentencing process in that the judge failed to give effect to his stated intention to fix a “lower than usual non-parole period”.
The appellant contended that the mitigating factors personal to the appellant all of which were accepted by the sentencing judge should have led him to conclude that a non-parole period of less than two thirds of the head sentence was justified.
Counsel for the appellant pointed to the appellant’s lack of any relevant prior criminal history, including the fact that he had no prior convictions whatsoever for offences of violence and had never been imprisoned. He also pointed to the appellant’s expressions of contrition and remorse when confronted with the video, his early plea and his stable home and employment situation including the fact that he has three young children aged 12, 10 and 7 years dependent upon him. It was submitted that all of this should have led the judge to conclude that the appellant’s prospects for rehabilitation were good and justified the fixing of a lenient non-parole period.
The appellant’s alternative submission was that in fact the judge expressly stated that it was appropriate to impose a lower than usual non-parole period, but for some reason, whether mathematical or otherwise, he simply overlooked it and failed to give effect to that stated intention. The appellant submitted that the error is obvious by the fact that after stating he would impose a lower than usual non-parole period, he then fixed a non-parole period which represented two thirds of the head sentence
The appellant’s arguments can be dealt with quite shortly.
It is apparent that the judge must have accepted all of the submissions put on behalf of the appellant both as to the circumstances in which the offence was committed and the appellant’s personal circumstances because he imposed a head sentence which can only be described as moderate for this type of crime.
A sentencing judge has a wide discretion when fixing an appropriate non-parole period in any given case. For this reason it is not necessary to identify what might be described as a “usual non-parole period”. There are many and varied circumstances which might appropriately be taken into account when fixing a non-parole period. Therefore standing alone I would not be prepared to conclude that a non-parole period representing two thirds of the head sentence was necessarily in itself, manifestly excessive. However, in the penultimate paragraph of the sentencing judge’s remarks he said:
Your counsel sought the suspension of any term of imprisonment. This offence is too grave and prevalent. There is, in your case, no good reason to suspend the above term. Rather, I have reflected those matters of mitigation found in your personal antecedents in the lower than usual non-parole period and, to some extent, the head sentence. …
I consider that in those remarks the judge was stating his intention to deal with the appellant somewhat more leniently that he otherwise would have. That conclusion is consistent with his acceptance of the mitigating matters personal to the appellant which he had previously accepted. It is also consistent with the relatively moderate head sentence which his Honour imposed.
Having expressed his intention in that manner to deal with the appellant leniently I do not consider that his Honour could have intended to fix a non-parole period that in fact represented two thirds of the head sentence.
In the light of his Honour’s stated intention and against the background of all of the facts which the sentencing judge accepted, I have concluded that there was some error in the fixing of the non-parole period, which justifies the intervention of this Court.
In re-sentencing the appellant I do not consider it necessary to interfere with the head sentence imposed by the judge. There was no complaint about the head sentence, nor could there be, in the light of the fact that a moderate head sentence was imposed.
The imposition of a non-parole period of 2 years 6 months in my view more closely reflects the sentencing judge’s stated intention to fix a lower than usual non-parole period. The circumstances accepted by the Learned sentencing judge and not disputed by the respondent on the hearing of this appeal, justify dealing with the appellant leniently.
For these reasons I would allow the appeal. I would interfere with the sentence only to the extent of reducing the non-parole period by 6 months. When account is taken of the time in custody the non-parole period is 2 years 5 months and 3 weeks which should be backdated to 11 March 2008.