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…

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] SASC 259
Case: [2008] SASC 259
Decision Date: 26 September 2008

CaseChat Overview and Summary

The appeal before the court involved the appellant, Matthews, who had pleaded guilty to a count of aggravated robbery. The original sentence imposed was four years, five months, and three weeks imprisonment, with a non-parole period set at two years, eleven months, and three weeks. Matthews challenged the severity of the non-parole period, arguing that it was manifestly excessive and that the sentencing judge had failed to properly consider his intention to set a lower than usual non-parole period.

The central legal issue for the court was whether the non-parole period imposed was manifestly excessive and if the sentencing judge had erred by not aligning the non-parole period with his expressed intention. The court needed to determine if there was a significant error in the sentencing process that warranted altering the non-parole period.

The court found that there was indeed an error in the sentencing process. The sentencing judge had explicitly stated an intention to fix a non-parole period lower than usual, which was not reflected in the imposed sentence. Furthermore, the personal mitigating factors presented by Matthews warranted a reconsideration of the non-parole period. Given these considerations, the court concluded that the non-parole period represented two-thirds of the overall sentence, which was disproportionate. Consequently, the appeal was allowed, and the non-parole period was reduced to two years, five months, and three weeks imprisonment.

Orders