R v Matthews

[2023] NSWDC 611

District Court

New South Wales

Medium Neutral Citation:

R v Matthews [2023] NSWDC 611

Hearing dates:

11 December 2023

Date of orders:

11 December 2023

Decision date:

11 December 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 12 years imprisonment with a non‑parole period of 9 years

Catchwords:

CRIME — Apprehended violence orders — Contravene apprehended violence order

CRIME — Sexual offences — Aggravated sexual intercourse without consent — Sexual intercourse without consent

CRIME — Public justice offences — Do an act with intent to pervert course of justice

CRIME — Violent offences — Assault Occasioning Actual Bodily Harm — Choking

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence

­— ­ Assessing the seriousness of each offence — No need for abstract descriptors — ­ Specific deterrence — General deterrence — Totality — Objective seriousness — Aggregation

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — No finding of special circumstances given length of sentence — Controversial aspects of psychologists report unable to be proved

SENTENCING — Aggravating factors — Domestic violence offences — In the family home — Presence of child — Pregnant complainant — Subject to bail – Subject to ADVO — Persistent offending

SENTENCING — Mitigating factors — Prosocial support — Family history

SENTENCING — Sentencing procedure — Use of character references — Some assertions contradicted by other evidence — Victim impact

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007(NSW)

Criminal Procedure Act 1986 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Ahmu v R; DPP v Ahmu [2014] NSWCCA 312

Browning v R [2015] NSWCCA 147

Cherry v R [2017] NSWCCA 150

DH v R [2022] NSWCCA 200

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Harrigan v R [2005] NSWCCA 449

Kochaiv R [2023] NSWCCA 116

Marinellis v R [2006] NSWCCA 307

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

MRM v R [2015] NSWCCA 195

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120;

Munda v Western Australia [2013] HCA 38

The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Owen v R [2022] NSWCCA 214

R v AJP [2004] NSWCCA 434

R v Burton [2008] NSWCCA 128

R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41

R v Dunn [2004] NSWCCA 346

R v Giang [2001] NSWCCA 276

R v Harris [2007] NSWCCA 130; 171 A Crim R 267

R v Herring (1956) 73 WN (NSW) 203

R v Pangallo (1991) 56 A Crim R 441

R v Taouk (1992) 65 A Crim R 387

R v Wheeler [2000] NSWCCA 34

R v Windle [2012] NSWCCA 222

R v XX (2009) 195 A Crim R 38

Ryanv The Queen [2001] HCA 21; (2001) 206 CLR 267

Taylor v R [2007] NSWCCA 99

The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256

Van Ryn v R [2016] NSWCCA 1

Doe v Regina [2013] NSWCCA 248; (2013) 187 A Crim R 328

Category:

Sentence

Parties:

David Richard Matthews (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
S Fraser (for the offender)
N Keay (for the Crown)

Solicitors:
Russoniello Lawyers (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s):

2021/218369

Publication restriction:

Statutory Non-Publication Order applies. On 11 December 2023 the DPP advised the Court that the complainant had consented to her name being published.

JUDGMENT – ex tempore revised

Introduction

1. David Matthews and Tianna Humphreys formed a relationship in 2017. Their first child was born in December 2019. In October 2020, Ms Humphreys found she was pregnant with their second child. In December 2020 Ms Humphreys made a number of complaints that Matthews had assaulted her. With the assistance of the Department of Communities and Justice she travelled to Queensland to stay with her parents for Christmas and her child’s birthday. Matthews joined her in Queensland. In January, both returned to New South Wales and continued to live together.

2. On 17 and 18 June 2021 there was a series of incidents and Ms Humphreys again drove to Queensland. She returned to New South Wales soon after. Their child was stillborn on 24 June 2021. Forensic examination revealed the foetus had died in utero, two to seven days before delivery.

3. In mid-July 2021 Apprehended Domestic Violence Orders were issued by police. Matthews was informed of them. Ms Humphreys also entered temporary care arrangements and their child went into foster care.

4. In July 2021 a friend noticed bruising on Ms Humphreys’ neck. The friend was aware that despite the Apprehended Domestic Violence Order Ms Humphreys and Matthews were living together.

5. At the end of July Matthews again assaulted Ms Humphreys.

6. The funeral for their stillborn child occurred at the end of July 2021. On the morning of the funeral Matthews sexually assaulted her on three occasions, and after the last sexual assault he caused her actual bodily harm.

7. At the funeral Matthews was obviously upset and distraught. He was abusive towards Ms Humphreys, accusing her of killing their unborn child.

8. After the funeral Ms Humphreys spoke with close friends and then went to Lake Illawarra Police Station and lodged formal complaints. Over the next few days, she completed a 35 page statement detailing a number of very serious allegations against Matthews.

9. Matthews was arrested on 30 July 2021. He has been in custody since that date. Two further days of custody in relation to one of the earlier incidents will be credited to him. I intend to start this sentence on 28 July 2021.

10. While in custody Matthews was in contact with Ms Humphreys primarily through telephone calls. At one point, Ms Humphreys obtained a phone and a phone number in a false name to enable those calls to take place. Over the next many months there were a large number of calls between the two, sometimes many a day. During those calls, Ms Humphreys was urged by Matthews to retract the allegations she had made about him and cooperate with him in efforts to secure his release to parole.

11. In April 2022, Ms Humphreys gave police two detailed statutory declarations in which she purported to retract the allegations put forward and gave reasons why she had lied to police on earlier occasions. The matters were not withdrawn.

12. On 17 July 2023 Matthews came to trial at Wollongong District Court. He was arraigned and said he was not guilty to ten serious counts:

1. Assault Occasioning Actual Bodily Harm, December 2020: Crimes Act 1900 (NSW), s 59;

2. Assault Occasioning Actual Bodily Harm, 17 June 2021: Crimes Act, s 59;

3. Recklessly Causing Grievous Bodily Harm on 18 June 2021, the grievous bodily harm was alleged to be the destruction of the foetus, stillborn a week later: Crimes Act, s 59; Crimes Act, s 35(2);

4. Alternative charge of Assault Occasioning Actual Bodily Harm to Ms Humphreys: Crimes Act, s 59;

5. Intentionally Choking Ms Humphreys so as to render her unconscious, Insensible or Incapable of Resistance and being Reckless as to Rendering her Unconscious, Insensible or Incapable of Resistance between 18 and 27 July 2021: Crimes Act, s 37(1);

6. Assault Occasioning Actual Bodily Harm on 27 July 2021: Crimes Act, s 59;

7. Sexual Intercourse (digital penetration) with Ms Humphreys without her Consent Knowing she was not Consenting on 30 July 2021: Crimes Act, s 61I;

8. Sexual Intercourse (oral intercourse) with Ms Humphreys without Her Consent Knowing she was not Consenting on 30 July 2021; Crimes Act, s 61I;

9. Sexual Intercourse (oral intercourse) with Ms Humphreys without her Consent Knowing she was Not Consenting and Immediately after causing her Actual Bodily Harm, again on 30 July 2021: Crimes Act, s 61J(1);

10. Doing an Act to procure Ms Humphreys to make a statement retracting allegations made against Matthews in her earlier police statement, thereby Intending to Pervert the Course of Justice: Crimes Act, s 319.

13. On 30 August 2023 a jury of 12 found Matthews guilty of each count except Count 3. Matthews must, and will, have the full benefit of that acquittal.

14. The jury did find him guilty of the alternative Count 4. Accordingly, it can be accepted that while the jury accepted Ms Humphreys’ evidence about an assault, it could not be established beyond reasonable doubt that the assault led to the foetal death.

15. Matthews now stands for sentence for those remaining counts and this morning I convicted him of a related summary offence of breaching an Apprehended Domestic Violence Order which related to some of the period during which the offences dealt with on indictment occurred. It was accepted that, consistent with the jury’s verdict, no other verdict by me was justified under a s 166 Criminal Procedure Act 1986 (NSW). Matthews now is for sentence, we having begun and completed sentencing proceedings today.

Facts for sentence

16. There is no significant difference between the parties’ submissions in relation to the facts for sentence: MFI 1 and 2. It is accepted by the defence that the evidence led at trial was consistent with the Crown case statement, the opening address of the Crown, and the evidence of Ms Humphreys at trial. What follows is a very short summary taken from counsels’ helpful submissions.

17. Count 1 involved an assault on the complainant when she was pregnant. She was lying in bed with her son. Matthews kicked her out of bed, pushing his feet into her back and causing her to fall on her hands and knees. He kicked her in the back again. He then followed her into her son’s room and spat on her. While she was attempting to get her son’s breakfast, he again kicked her with his foot, kicked out into a plastic shopping basket which then hit her. He kicked her with his work boots. She received bruising to her leg and injury to her toe.

18. She sought help from a caseworker and scans were undertaken of the unborn child. The offence was committed when her son was in close proximity.

19. Count 2 involved a further assault on 17 June 2021 after an argument in the shed. It related to a belief expressed by the offender that she had been cheating on him. It involved him choking his pregnant partner, covering her mouth and squeezing the front of her throat.

20. She could not breathe. He let her go, she was able to enter the house, but she was grabbed again, pulled, and at one stage he knelt on her stomach. The incident ended when he left the premises having threatened to self-harm. Her son was woken during the course of this incident.

21. Count 4 involved another assault in the family home. The complainant was placed in a headlock and pushed over the edge of the bed. The offender was talking about her cheating, mentioning alien software, things she had no idea about. Her son was in bed with her at the time. She felt pain in her lower back She was put in a position where her head was hanging over the side of the bed.

22. Injuries were sighted by others soon after, but it is hard to know exactly which of the assaults led to these injuries. It was after this assault she went to Queensland.

23. The following offences occurred after the Apprehended Violence Order was put in place.

24. Count 5, the offender was still having contact with her despite the Order. Again, he commenced an argument alleging infidelity. She left the house, he chased her. He had been in the shower. He was naked and he dragged her back into the house by her hair. Again, he put his hand over her throat making her struggle to breathe so that she felt faint. He told her at one stage it was “time for her to die”.

25. Count 6 occurred soon after when she was getting ready to visit their son who at that time was in care. Again, there was an allegation of her being unfaithful. She was headbutted to the side of her face and ear. She sat down crying and he kicked her on the leg. There is no allegation of anything other than generalised bruising resulting.

26. It is accepted that Counts 7, 8 and 9 occurred during the night before the funeral of their stillborn child. It can be accepted that both the offender and the complainant were in a low emotional state. But nothing in that situation justified or excused what had occurred.

27. The offender again accused the complainant of infidelity. He would not accept her denial despite the fact that she told him she was “on her period” and had stripped off her clothes to show him. Despite her having recently lost a child, he stuck his fingers in her vagina to see if in fact she was having her period. This was a particularly degrading act. He continued to be domineering of her. He argued with her. He was physically violent. He refused to let her leave the premises unless she gave him what he described as a “blow job”.

28. Given the situation she was in, his demands, his apparently irrational comments and earlier violence, she felt compelled to comply. He thrust his penis into her mouth. He ejaculated inside her throat causing her to gag and vomit.

29. He did not stop his behaviour. He continued to accuse her of infidelity. He would not accept her answers. At this point he asked for an “alien blow job” and started a 15 minute timer. The act of fellatio was again forceful with ejaculation into her throat.

30. Immediately following this act, he was physically violent towards her, grabbing her hair and punching her, putting his hand over her mouth causing her to struggle to breathe, such that she went limp. The offender tried to take her into the bathroom telling her that she had had a drug overdose.

31. Count 10 occurred after the offender had been gaoled. The offender ingratiated himself with the complainant, attempting to avoid responsibility for the very serious crimes he had perpetrated on her, and induced her into providing two false declarations to avoid the serious charges that were then before the Court. It occurred over a period of 10 months. It was persistent. It involved the complainant being induced into acts of subterfuge. It occurred with the assistance of the offender’s family members. Promises were made by the offender to the complainant; promises that could never have been kept and were not, in my view, intended to be kept.

Objective seriousness

32. An assessment of objective seriousness or gravity of the offending is critical to every sentencing process. Judges do not take a staged approach to sentencing: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [29].

33. At times judges and counsel attempt to fix on a set of descriptors or a range of assessments of objective seriousness. At times those descriptors refer to or reference a notional midpoint. For some years it appeared that this process has become so ubiquitous it appeared prescribed. Where controversy exists, a sentencing judge must resolve that controversy: Owen v R [2022] NSWCCA 214 at [49]. But sentencing judges are not obliged to assess the objective seriousness of the offences by reference to their relationship with a notional midpoint: DH v R [2022] NSWCCA 200 at [58]-[60]; Kochai v R [2023] NSWCCA 116 at [47]-[51].

34. There is a risk, as McHugh J pointed out in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, of determining seriousness by reference to some abstract descriptor. There can be a tendency for anyone’s mind, experienced judge or not, to seize on one or two variables seen as cogent and give those variables undue weight. Over confidence, sometimes under confidence, McHugh J noted, can lead to error, when particular circumstances are selected as the starting point for a decision, and other factors are allowed to modify that starting point.

35. What a sentencing judge must do is identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what the appropriate sentence will be given all of the factors. Only at the end of the process does the judge determine the sentence: Markarian at [51] and [55] (McHugh J).

36. As is obvious from the complainant’s evidence, which was accepted by the jury and briefly summarised, each of these offences relative to the offence charged were serious, some were very serious.

37. The offences were all personal violence offences, they were all in the context of a domestic relationship. After Count 5, he was subject to Domestic Violence Orders. The offences were committed either when she was pregnant or had recently given birth, and some as I have indicated, occurred in the presence of a child.

38. I have to ultimately take into account their seriousness and apply the often contradictory purposes of sentencing in determining both the individual sentences to be indicated in the aggregate sentence.

39. Sentences must be proportionate and the punishment proportional to the seriousness of them and the harm caused individuals, and in any case involving domestic violence, the harm to the community must also be recognised.

40. Here, in their submissions, both prosecution and defence have identified factors that go to the assessment of the seriousness of the offending.

41. Mr Fraser, who appeared for the offender at trial and sentence, makes suggestions as to where each of the offences fall in relation to some notional range. Madam Crown, who appeared at trial and the sentence, indicates in her submission that the sexual intercourse offences were at least in the mid-range, possibly higher. Mr Fraser submitted that the first of the intercourse offences was below the mid-range and that the remaining two were mid-range offences. Both counsel acknowledge the seriousness of the offending. I do not believe I need to resolve this controversy by making my own individual and subjective assessment of where on some notional range each offence falls. It is enough to say that it is accepted by both parties that they were serious examples of their type.

42. Mr Fraser notes that the physical injuries after some of the assaults were not high in the range of possible matters that might occasion actual bodily harm, bruising and the like.

43. Madam Crown makes the obvious retort that some of the offences, which I have detailed, involved choking or strangulation. One reason we have offences such as Count 5, is to recognise that it is possible to inflict harm by way of choking (with possibly fatal consequences) without leaving significant actual bodily harm.

44. I must look at the seriousness of an offence in total, not just the physical aftermath. I must take into account both the physical and psychological consequences of the offending.

45. I will, to the extent that it is possible, distinguish the relative seriousness of offences charged under the same provision by the indicated sentence. But if it needs repeating, each of the offences were serious and each of the offences required, when considered individually and collectively, sentences of full-time imprisonment. They were each serious examples of their type.

46. Courts have over decades come to recognise the special dynamics of domestic violence offences. In my experience, this at times, required some education as to how serious these matters should be regarded. In 2016, the High Court recognised that there has been a societal shift and that sentencing practices for offences that involve domestic violence, if they had been treated less seriously by the courts than other forms of assault, required change: The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 at [21]-[28].

47. Each of the offences here involved the abuse of a relationship of trust, abuse of a relationship of what previously would have been regarded as a loving relationship, and exploitation of that relationship by violence. Such behaviour must be deterred.

48. The offences before the Court reveal that the complainant was personally targeted. The offences were part of a larger picture of physical and mental violence. They involved the exercise of power and control by the offender over the complainant: R v Burton [2008] NSWCCA 128 at [97].

49. The evidence before the jury establishes that at times the offender somehow believed that what he was doing was justified or could be excused: Ahmu v R; DPP v Ahmu [2014] NSWCCA 312 at [83]. That he believed that he was the person wronged carries with it a continued threat. That threat meant that throughout the period of the offending, and even after the offender was gaoled, the complainant would never have felt truly safe: R v Dunn [2004] NSWCCA 346.

32. Crimes such as this will be treated, and are treated, with real seriousness. Proper recognition has to be given to the harm that the offences cause, not just to the victim, but also to their family members, particularly children.

33. That the offences were committed in breach of an Apprehended Violence Order, that was put in place to protect her from him, is an aggravating feature. They were in breach of a form of conditional liberty designed to protect her from him: Browning v R [2015] NSWCCA 147 at [4]-[9]; Cherry v R [2017] NSWCCA 150.

34. He also committed some offences while he was on bail. It is a principal condition of bail that one agrees to be of good behaviour. As a consequence, greater weight has to be given in those sentences to specific deterrence and general deterrence.

35. I note that this morning I convicted Matthews of a breach of ADVO offence. I will indicate a sentence for it. Given that I have taken the breach into account in aggravation of sentence it would be wrong to double count that factor by way of an additional penalty.

36. The choking offences, as I have already indicated, are there because the community has to understand that to strangle or deprive someone of air can be, and sometimes is, fatal. And that while the physical injuries that result may not be always significant, the psychological damage that can be done, both when the offence is being committed, in that a person does not know if they are going to live or die, or afterwards, knowing that they were put in such a position, cannot and should not, be underestimated.

37. So far as the sexual intercourse matters are concerned, the nature of the intercourse, nor in the case here, the motivation for it, cause any significant difference in the penalties that should be imposed. I cannot, and do not, attempt to understand the offender’s state of mind at the time. I focus on what he did and the degrading nature of what he did, not the actual form of intercourse: R v AJP [2004] NSWCCA 434; Doe v Regina [2013] NSWCCA 248; (2013) 187 A Crim R 328 at [54]; MRM v R [2015] NSWCCA 195 at [148].

38. The degree of physical interference and the degree of degradation do differ however, between the acts of oral intercourse and the digital penetration, requiring some differentiation between the two, and of course Count 9 had with it the additional assault.

39. Those three offences were separate and distinct, but also part of a course of conduct, all with the same ultimate aim of effectively punishing and degrading the complainant and there will be considerable concurrence so far as those matters are concerned. But again, each individual act requires some individual punishment.

40. So, in all matters I have taken into account the degree of violence, the degree of physical harm, the degree of potential psychological harm, all the circumstances and the duration of the offence, and here, in particular, the degree of humiliation and degradation suffered by the complainant.

Pervert the course of justice

59. There is a community interest in ensuring that justice is properly done. Offences of perverting the course of justice strike at the heart of our judicial court system. It is accepted, and is accepted here by the defence, that matters such as this should be severely punished whenever detected: Marinellis v R [2006] NSWCCA 307 at [10]; R v Pangallo (1991) 56 A Crim R 441 at 443; Harrigan v R [2005] NSWCCA 449 at [47]; R v Giang [2001] NSWCCA 276 at [21].

60. Because of the difficulty of detecting such matters, deterrent penalties are generally imposed. The fact that the attempt did not succeed, is of far less significance than many other attempt offences: Taylor v R [2007] NSWCCA 99 at [25]; Marinellis at [8]; R v Taouk (1992) 65 A Crim R 387 at [392]. It is the tendency of the conduct, which is decisive, and it is irrelevant in a significant sense whether the injustice actually resulted: Marinellis at [8].

61. This was, and is accepted, a particularly serious example of its type given its duration, the nature of the demands made upon the complainant, the degree of complexity involved in the subterfuge and the provision to the police of additional documents.

Victim impact

62. The offender will and has lost access to his son. He has brought that upon himself. The offender has done real harm to someone that he loved. There was a Victim Impact Statement read to the Court, I had the opportunity of seeing the impact in giving evidence on Ms Humphreys as she described these events. There is no doubt in my mind that at various times during the relationship Ms Humphreys loved the offender and he loved her. It is clear that he was able to, and did, exploit that love with no concern for her or his son. Why he did what he did remains a mystery. Dr Klamer, in Exhibit 1, puts forward two possible versions which can be addressed to reduce the risk, but as the offender has denied his offending; I am none the wiser.

63. At various times as the Victim Impact Statement made clear the complainant chose to forgive and return to the offender. He did not respond the way a loving partner should. He did not behave in the way that a loving partner should respond to the mother of his child. Instead, as she said, he belittled her, he punched, kicked, choked her, he raped her. They both lost a child and as I said I cannot punish him for that alleged offence, but even though she was pregnant with his child he continued to assault her, and as a consequence of his continued contact with her, at least for a period, she lost access of her son. Her self-esteem, she said, was destroyed and she became a “shell”.

64. His selfish behaviour continued to inflict trauma on her which she said she still relives. She concluded:

“How you chose to think so poorly of me, how you chose to continue to be so selfish, how you chose to make me relive the trauma you inflicted, how you chose not to take responsibility or show remorse, how you chose not to choose your children, you chose you … I choose my children, I chose our safety, I choose our freedom, I chose me.”

65. The sentences I impose should not be measured simply against the harm she felt or suffered. The Court, as I have tried to indicate, has to take into account and balance many, many conflicting factors, not the least being that at some stage Matthews has to be returned to the community and hopefully not reoffend.

Maximum penalties and standard non-parole periods

66. Careful attention to maximum penalties where applicable and standard non-parole periods is required. I am required to give content to standard non-parole period and make my assessment of objective seriousness without reference to matters personal to the offender: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]. But nor as I made clear, do I engage in a staged approach, but the maximum and the standard non-parole period, where applicable, are important guides to the exercise of my sentencing discretion: Muldrock at [28].

1. Assault Occasioning Actual Bodily Harm, Crimes Act, s 59, carries a maximum penalty of 5 years.

2. Intentional Choking, Crimes Act, s 37, carries a maximum penalty of 10 years.

3. Sexual Intercourse without Consent, Crimes Act, s 61I, carries a maximum penalty of 14 years, and Parliament has fixed a standard non-parole period of 7 years for an offence, which taking into account objective features, falls in the middle range.

4. The aggravated form of Sexual Intercourse without Consent, Crimes Act, s 61J(1), carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.

5. Doing an Act to Pervert the Course of Justice, Crimes Act, s 319, carries a maximum penalty of 14 years imprisonment.

6. Breach of a Domestic Violence Order, Crimes Act, s 13, carries a maximum penalty of 2 years imprisonment.

Criminal record

67. Matthews has a criminal record. Neither of those matters were particularly serious and were dealt with by way of fines. He comes before the Court effectively as a first offender. But as the submissions made clear, it is not at all uncommon for people who appear to be otherwise of good character to commit offences such as these. While he is entitled to that good character to be taken into account, that has to be weighed with the extent of his offending and the seriousness of his offending.

Subjective case

68. I have received a report from Dr Sharon Klamer, a forensic psychologist. I have received references from friends, family members who know Matthews well. Objection was taken to tender of the references, that objection was overruled by me. But in doing so I made it clear my understanding of the material was that the references have been provided by people who know Matthews well, but either did not know of the seriousness and extent of the offending, or as himself still maintains, showed a belief that they accepted him and believed in his innocence.

69. There is information that can be gleaned from them, but they need to be viewed very carefully. For example, his mother said, “I have never known David to be the instigator of violence”. There is material before me that the assault conviction to which I have earlier referred, involved an act of violence towards his mother. Similarly, in relation to the same act, he told Dr Klamer something quite different than the facts revealed, so far as that matter is concerned.

70. The evidence before me indicates that Matthews experienced domestic violence in the family home. He was not a deep thinker at school, but he was a person who was able to work hard and establish a business. That business continued with support from friends and family, both financially and as the evidence reveals, in kind. But he was disorganised, he made a number of poor business decisions, but he sought to compensate for that lack of capacity by working hard in the jobs that he did.

71. His referees speak of a person who they regard as having integrity, honesty and selflessness with a good, moral upbringing, perhaps someone too trustful, but theses description reveal a problem. As Madam Crown pointed out, the behaviour revealed by the evidence is inconsistent with those opinions, and thus can they be given very little weight.

72. It is clear however that Matthews does have some capacity to work and has support in the community. This may, when he has served the minimum term the law requires, enable him to re-establish himself in the community.

73. There is evidence before the Court that he was, during some of the period of the offending before he went into custody, using and abusing methylamphetamine. The references make no reference to that illicit drug use.

74. The offender wrote a letter to me indicating that he would do any courses that were offered. His gaol record reveals, bar one or two minor matters, a cooperative inmate, that he has worked as a sweeper and sustained a needlestick injury. He still, I accept, grieves for the loss of his child and other deaths that occurred while he was in custody. He speaks of his anxiety in gaol. This is not surprising; gaols are nasty, violent places. It is illustrative that gaol record includes a violence charge which was dismissed. He says that he is now drug-free, and he makes complaints about when and why he started taking drugs, hard drugs, matters that I just cannot verify one way or the other.

75. He concludes, “I want more than anything to return to my family and begin mending the damage this has caused everyone”.

76. There is no evidence of remorse. He maintains his innocence, he is entitled to that belief, and he is not to be punished for that belief. But I sentence him in accordance with the jury verdict. His stated intent about “mending the damage this has caused everyone”, acknowledges there is absolutely no acceptance of responsibility in this matter from the offender.

77. Dr Klamer’s report sets out some matters in Matthews personal history that cannot be verified, and in one respect, as I have already indicated, his story contradicted by otherwise objective evidence.

78. Matthews told Dr Klamer about his family background, much of what he says about his work and family seem relatively uncontroversial. The report was prepared without Dr Klamer being asked to, or engaging in, any analysis based upon the facts found at trial. To that extent as Madam Crown says it is not particularly helpful.

79. Mr Fraser says there are two aspects, however, that can assist the Court, particularly when it comes to future risk, and that I can have some confidence in accepting what Dr Klamer says because the report very clearly sets out her expert professional opinions. That she was acutely aware and astute as to the possibility that Mr Matthews was minimising or recounting matters with a view to making an impression, as opposed to allowing for completely honest and frank analysis of himself by a psychologist.

80. Mention is made of the possibility of sexual abuse as a child. Such matters can have an impact on a person’s psychosocial development and their future mental health. But there is no evidence to support that allegation, and on balance, I could not accept it given the history of the matters before me.

81. There is also evidence of exposure to domestic violence in the home. Again, while there is some evidence of discord, particularly given the breakup of his parents’ marriage, it is hard to make any particular findings. Dr Klamer says, “It appears that there is a background of developmental abuse and trauma, early exposure to violence, parental neglect and substance use”. But those conclusions are not supported by the references before me.

82. There is a history of illicit substance abuse. There was some evidence at trial that supports Matthews use methylamphetamine at or about the time some of the offences occurred before his incarceration. But Dr Klamer notes, “It is unclear if Mr Matthews’ mental health was impacted by his chronic substance use”, something she says needs to be explored: Exhibit 1, par 26.

83. It appears that Dr Klamer was trying to do is find some possible cause for what is obvious in the material before me; that Matthews has developed distorted cognitions pertaining to relationships, the role of sex, men and women. Whether it is, as she concludes, his father’s physical violence or sexual victimisation, I cannot find. But the material before me indicates that whatever its cause, and there were certainly some personal stressors operating on him at the relevant time, including substance abuse. His actions cannot, and will not, be excused by reference to drug use or some other potential psychological condition. The evidence does not justify those findings. In any event drug use does not use mitigate.

84. The material before me does not help me to understand why he engaged in this behaviour or did what he did. There is not enough evidence for me to find that somehow his moral culpability was reduced, nor is that submission made.

85. Rather, Mr Fraser says that looking at the matter objectively I could find that, on balance, if Matthews engages in custody, and on release, in drug rehabilitation programs, and if as recommended, a criminogenic treatment plan can be put in place then, as Dr Klamer says, his risk of engagement in future acts of violence or sexual violence may be reduced. This is because, as she notes, the events occurred during periods of stress and poor emotional regulation. If Matthews can get help dealing with those problems, then his potential for risk might be reduced. But that risk remains at a high level as I read the report.

86. In discussion (and pars 15 and 16 of Mr Fraser’s submissions) mention was made of the possibility of both drug induced paranoia and delusional thoughts. The Crown note that there are multiple episodes, they are not all indicative of substance abuse. I cannot make the finding one way or the other, even on balance: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270. But I cannot ignore the context of the death of a child as a significant emotional stressor.

Structure of sentence

87. I will impose an aggregate sentence. In doing so I will indicate what is the appropriate sentence for each offence and then come to a sentence which is just and appropriate and proportionate to the offender’s crimes in total.

88. Each of the offences were discrete but some had common features. The purposes of sentencing apply to all of them. There should be partial accumulation.

89. The practical problem a judge faces when dealing with multiple offences can be explained in short and simple terms. There are some states in the United States of America where judges simply add one count on top of the other, getting to ridiculous periods of custody. That is not our system. This is because the simple arithmetical addition of sentences appropriate for each offence will often result in an ultimate aggregate which exceeds what is required in all of the circumstances: Van Ryn v R [2016] NSWCCA 1 at [228]-[230].

90. At the same time, there is a need to ensure public confidence in the administration of criminal justice. This requires that the community not be left with a perception a person who commits a deliberate series of discrete offences escapes effective punishment: R v Wheeler [2000] NSWCCA 34 at [36]-[37]; R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]; Van Ryn v R at [228]-[230]; R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]; R v XX (2009) 195 A Crim R 38 at [52].

91. Where someone has never been in custody before or where they have demonstrated, as Matthews did, a capacity to lead a life in the community and work in the community, and where, on the material before me, there are prospects that he can return to the community and not reoffend, the Court has to be careful.

92. Long sentences can institutionalise offenders, they can induce a feeling of hopelessness and destroy expectation of useful life after release. This can increase the severity of the sentence as it is served by the prisoner and undermine, or in fact destroy, prospects of rehabilitation and reform. However, what is proportionate, what is ‘crushing’, what is encouraging of rehabilitation, often depends on the perspective of the observer. On one side there is the offender and their family, on the other side the victims and their supporters and the community: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.

93. I have sought to address the principal differences between the parties. The remaining for resolution is whether, as Mr Fraser submits, I should allow a period of parole for extended supervision monitoring and assistance while Matthews is in the community by a finding of special circumstances: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B). He says that while the fact this is Mr Matthews’ first time in custody, of itself does not justify such a finding; his need for assistance in adjusting to normal community life on release, his need for supervision, his need to have an incentive to engage in programs and something to work towards as an incentive to secure release, all justify a longer period on parole.

94. In response, Madam Crown makes the point that there is no automatic right to a longer period on parole because this is a person’s first time in custody. She says that any findings I make, as to need for assistance, must be, as I have indicated, guarded. And, that there is nothing special in the material put before me at all, to justify an intervention, that would require extension of time on parole beyond what would be required, given the length of the sentence I have to impose.

95. Here, the material before me that indicates that Matthews has, so far as anyone can do, adjusted to gaol life. An important consideration is that the minimum time in custody must meet all the purposes of sentencing. Given the length of the sentence that I have to impose there is no need, in my view, to make a finding of special circumstances and adjust the ratio.

Synthesis

96. Synthesising all those matters. A proper sentence should mark the Court’s view of the seriousness of each individual crime and the required penalty for the aggregation of all the crimes.

97. Sentences should be proportionate to the offending. Sentences should, individually and collectively, let other wrongdoers know the retribution which will fall upon them if they commit similar crimes, the principle of deterrence: R v Herring(1956) 73 WN (NSW) 203 at [205].

98. Even in the case of deniers, a sentence should so far as it is possible, bring home to the offender themselves the consequences of committing similar crimes in the future: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryanv The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.

99. There is also a community expectation, particularly in crimes such as this, that the offender will suffer appropriate and severe punishment, and a proper sentence marks the Court’s view of the seriousness of the crime: Ryan v The Queen; R v Windle [2012] NSWCCA 222.

100. As the High Court said in Munda v Western Australia [2013] HCA 38 while there may be some challenges to principles of retribution and deterrence, as vehicles designed to reducing the incidence of crime, the Court has to make these important points:

1. It would be wrong to accept that the victim of violence, particularly in the domestic context, and each of these offences involved violence of some significance, is somehow less deserving of protection and vindication as the criminal law can provide.

2. Courts have an obligation:

1. To vindicate the dignity of victims of violence, sexual violence, domestic violence;

2. To express the community’s disapproval of the offending; and

3. To attempt, by the severity of the sentences imposed, to protect others against repetition of such violence.

101. It needs to be stated, it needs to be restated, that crimes such as this are unacceptable, and proper recognition must be given to the real harm crimes do to, in matters such as this, their immediate victims, the children of victims, and the community in general.

Orders

102. I will indicate sentences for each of the matters before the Court, then impose an aggregate sentence which is to date from 28 July 2021.

1. Count 1, Assault Occasioning Actual Bodily Harm: I indicate a sentence of 1 year.

2. Count 2, Assault Occasioning Actual Bodily Harm: I indicate a sentence of 1 year and 6 months.

3. Count 4, Assault Occasioning Actual Bodily Harm: I indicate a sentence of 1 year and 6 months.

4. Count 5, Intentional Choke: I indicate a sentence of 2 years and 3 months.

5. Count 6, Assault Occasioning Actual Bodily Harm: I indicate sentence of 1 year.

6. Count 7, Sexual Intercourse without Consent: I indicate a sentence of 4 and a half years, non-parole period 3 years, 4 months.

7. Count 8, Sexual Intercourse without Consent: I indicate a sentence of 6 years, non-parole period 4 years, 6 months.

8. Count 9, Aggravated Sexual Intercourse: I indicate a sentence of 7 years, non-parole period 5 years, 3 months.

9. Count 10, Doing an Act to Pervert the Course of Justice: I indicate a sentence of 3 years.

10. The s 166 matter, pursuant to s 13 Crimes (Domestic and Personal Violence) Act: I indicate a sentence of 12 months.

103. The aggregate sentence in this matter will be 12 years imprisonment. The non-parole period will be 9 years imprisonment.

104. The formal orders of the Court are:

105. There will be a non-parole period of 9 years imprisonment which will commence on 28 July 2021, making you eligible for consideration for release to parole on 27 July 2030. Your release to parole will be subject to determination by the State Parole Authority. The balance of the term of 3 years will commence on 28 July 2030 and expire on 26 July 2033.

**********

Decision last updated: 19 March 2024