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R v Matthews

R v Matthews

Case [2023] NSWDC 611 11 December 2023

Aggravated Sexual Intercourse Without Consent

Assault Occasioning Actual Bodily Harm

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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…

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 [2023] NSWDC 611
Case: [2023] NSWDC 611
Decision Date: 11 December 2023

CaseChat Overview and Summary

The matter of R v Matthews came before the court in relation to multiple criminal offences. Matthews was charged with aggravated sexual intercourse without consent, sexual intercourse without consent, assault occasioning actual bodily harm by choking, and doing an act with intent to pervert the course of justice. Matthews also contravened an apprehended violence order (ADVO) during the period of the offences. The court was tasked with determining the appropriate sentence for these serious criminal acts.

The primary legal issues involved in this case were the assessment of the seriousness of each offence, the consideration of both aggravating and mitigating factors, and the determination of an aggregate sentence. The court had to weigh the individual and cumulative impact of the offences, including the persistent nature of the offending, the presence of a child, and the impact on the victim, against any mitigating factors such as prosocial support and family history. The court also needed to consider the totality principle and the need for specific and general deterrence in the sentencing process.

In delivering the judgment, the court found that the offences were of significant seriousness, particularly given the persistent nature of the offending and the impact on the victim. The court noted that the offences occurred in the family home and involved a pregnant complainant who was already subject to an ADVO. The court rejected the argument that the sentence should be reduced due to special circumstances, as the length of the sentence already reflected the gravity of the offences. The court also considered the psychologist's report but found that certain controversial aspects could not be substantiated. The court determined an aggregate sentence of 12 years imprisonment, with a non-parole period of 9 years, reflecting the need for both specific and general deterrence and the overall seriousness of the offending.

The final orders of the court were that Matthews be sentenced to an aggregate term of 12 years imprisonment, with a non-parole period of 9 years. This sentence was intended to reflect the seriousness of the offences, the need for deterrence, and the objective assessment of the totality of the offending behaviour.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Matthews [2023] NSWDC 611

Most Recent Citation

R v Douglas (a pseudonym) [2025] NSWDC 126

Cases citing this decision · 1 of 1 shown

R v Douglas (a pseudonym)
[2025] NSWDC 126 Para 321

…uiring sentence requires consideration of what is appropriately referred to as the principle of totality. His Honour Judge Haesler SC in R v Matthews [2023] NSWDC 611 described in what his Honour said were “short and simple terms” the practicality of the problem faced by a judge when dealing with multiple offences.…

View all 1 citing cases →

Cases cited in this decision · 27 of 27 shown

Kochai v R
[2023] NSWCCA 116 Para 33

…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].…
DH v R
[2022] NSWCCA 200 Para 33

…encing 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].…
Owen v R
[2022] NSWCCA 214 Para 33

…at 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…
Director of Public Prosecutions (Cth) v Beattie
[2017] NSWCCA 301 Para 92

…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.…
Cherry v R
[2017] NSWCCA 150 Para 33

…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.…
R v Kilic
[2016] HCA 48 Para 46

…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].…
R v Van Ryn
[2016] NSWCCA 1 Para 89

…ences 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].…
MRM v R
[2015] NSWCCA 195 Para 37

…hat 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].…
Browning v R
[2015] NSWCCA 147 Para 33

…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.…
Ahmu v R
[2014] NSWCCA 312 Para 49

…efore 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 offe…
Doe v R
[2013] NSWCCA 248 Para 37

…e 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].…
Munda v Western Australia
[2013] HCA 38 Para 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:…
R v Windle
[2012] NSWCCA 222 Para 98

…committing similar crimes in the future: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.…
Muldrock v The Queen
[2011] HCA 39 Para 32

…ousness 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].…
R v Burton
[2008] NSWCCA 128 Para 48

…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].…
R v Harris
[2007] NSWCCA 130 Para 90

…ion 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].…
Taylor v R
[2007] NSWCCA 99 Para 60

…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…
Cahyadi v R
[2007] NSWCCA 1 Para 90

…ion 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].…
Marinellis v R
[2006] NSWCCA 307 Para 59

…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].…
Harrigan v R
[2005] NSWCCA 449 Para 59

…his 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].…
Markarian v The Queen
[2005] HCA 25 Para 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 u…
R v Dunn
[2004] NSWCCA 346 Para 49

…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.…
R v AJP
[2004] NSWCCA 434 Para 37

…e 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].…
R v Giang
[2001] NSWCCA 276 Para 59

…ver 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].…
Ryan v The Queen
[2001] HCA 21 Para 98

…to the offender themselves the consequences of committing similar crimes in the future: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.…
R v Wheeler
[2000] NSWCCA 34 Para 90

…t 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 Olbrich
[1999] HCA 54 Para 86

…iple 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.…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
44(2B) 2 mentions (from Para 93)
Crimes Act 1900 (ACT)
59 2 mentions (from Para 1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 15)

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…