R v Matthews

[2020] NSWDC 570

District Court

New South Wales

Medium Neutral Citation:

R v Matthews [2020] NSWDC 570

Hearing dates:

29/6/20, 30/6/20, 3/7/20, 18/9/20

Date of orders:

18/9/20

Decision date:

18 September 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years with a NPP of 2 years 8 months (19/9/19-18/5/22). I find special circumstances.

The indicative sentences are:

Count 1 – 3 years 9 months with a NPP of 2 years 6 months.

Count 2 – 2 years 6 months.

I recommend that the offender be considered for admission to the Intensive Drug and Alcohol Treatment Program (IDATP) by Corrective Services.

Catchwords:

Crime – Sentence – Aggravated break and enter and commit serious indictable offence (larceny) – Knew there were persons inside the house – Take and drive conveyance.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v R [2013] 249 CLR 571

R v Hayes (1984) 1 NSWLR 740

Category:

Sentence

Parties:

NSW DPP – Crown
Shaun Harvey Matthews - Offender

Representation:

Mr A Baker for Crown
Ms S Rostron for Offender

File Number(s):

2019/277544

sentence

1. The offender, Shaun Matthews, stood trial before me, sitting as a judge alone, between 29 and 30 June 2020 on two charges, both said to have been committed on 5 June 2019. On Friday 3 July 2020, I delivered a verdict and reasons, in which I found the offender guilty of both offences.

2. Count 1 on the indictment is an offence of breaking and entering the dwelling house of Dr Gary Willis, and committing larceny, a serious indictable offence, in circumstances of aggravation, in that he knew that there were persons inside the house. The maximum penalty for that offence is 20 years imprisonment and a five year standard non-parole period is specified.

3. Count 2 on the indictment is an offence of taking and driving a conveyance without the consent of the owner Dr Willis, namely, a 2017 Porsche Macan. The maximum penalty for that offence is five years imprisonment. No standard non-parole period is specified.

FACTS

4. The facts of the offences are set out in full in my reasons delivered on 3 July 2020. However, in summary, the facts are as follows.

5. The victim of the offences was Dr Gary Willis. He lived with his wife at a house in New Lambton Heights, near Newcastle. On the evening of 4 June 2019, one of his cars, a Porsche Macan, was parked in the garage of his home. The garage door was locked and the keys to the car were left, together with Dr Willis’ wallet, on a kitchen bench inside the house.

6. On the morning of 5 June 2019, Dr Willis woke at about 7am and when he came downstairs he noticed a red T-shirt, which was normally kept in the garage, was on the floor in the kitchen and when he went to the garage he found the roller door open and the Porsche missing. The key to the Porsche, as well as Dr Willis’ wallet, were also missing. An internal door between the living room and the garage, which had been closed the night before, was open. The roller door to the garage had been propped open by a set of keys which had been jammed into the track of the roller door. The Porsche was seen the next day, 6 June 2019, at about midday being driven by a Mr James Garvey who was also in possession of the key to the car.

7. Although the Porsche and its key were forensically examined, no evidence was found to connect the offender Mr Matthews to either of those items. A forensic examination was also conducted at the house. This included an examination of the set of keys which had been found jammed into the roller door track. Evidence was led during the trial to the effect that DNA recovered from a swab taken from those keys originated from at least three individuals but that it was more than 100 billion times more likely for the mixture of DNA that was found to have originated from the accused and two unknown unrelated individuals than to have originated from three unknown individuals in the Australian population.

8. There was no dispute in the trial that the offences involving Dr Willis’ house and car were committed. The trial was conducted on the basis that the Crown could not prove beyond reasonable doubt that the accused was present and committed the two offences, either alone or in company with another person or persons. An essential part of the prosecution’s circumstantial case was that the DNA found on the keys left at the house had been placed there by the offender directly in the course of committing the offences. It was, on behalf of the offender, conceded at trial that the DNA found on the keys was in fact his. The question at trial was how it got there.

9. The accused gave evidence denying that he had committed the offences. He claimed that on the evening of 4 June 2019 he was awoken when at home by a knock at the door from Mr Garvey, the man who was later found driving the Porsche. He said that he lent Mr Garvey some clothes, they having been friends at the time, and later drove him to a set of flats in Mayfield where he waited for him for about 10 minutes and then drove him to New Lambton. He said that after Mr Garvey got out of the car it was noticed that he had left something behind and the offender called him back to retrieve the item and that at that point they slapped hands and said goodbye. The offender sought to rely upon this evidence to explain or raise a reasonable doubt as to how his DNA could have been deposited onto the keys found in the roller door track.

10. As noted in my reasons for verdict, I did not accept the evidence of the offender. I was satisfied, having regard to all of the evidence, that the Crown had made out the offences beyond reasonable doubt. I am satisfied that in the early hours of the morning of 5 June 2019 the offender, either alone or in company with another person or persons, gained entry to Dr Willis’ house and that he, either alone or with another or others, broke into the house through the closed internal door between the garage and living quarters and, once inside, that he, and possibly others, stole Dr Willis’ wallet and keys. I am further satisfied that the offender, either alone or with somebody else, then used the keys to the Porsche to drive the car away without permission of the owner. These are, in summary, the facts on which I propose to sentence.

11. Turning to the objective seriousness of the offences, the offence of breaking, entering and stealing must be regarded as serious, which is confirmed by the significant maximum penalty and the standard non-parole period. Offences of breaking, entering and stealing have been regarded as serious for many years, in part due to their prevalence and because of the harm they cause. Victims lose property, sometimes of great value, sometimes of great sentimental value which far exceeds their monetary value. More importantly, however, possibly in many cases, is the psychological harm which such offences cause by the loss of a feeling of security in the sanctity of the home and the invasion of privacy which such offending involves. Offences of this kind have led to the prevalence of bars on windows, burglar alarms, CCTV cameras and increasing insurance premiums. For these reasons, offences of this kind must be dealt with in a manner which gives substantial weight to the need for deterrence.

12. As was said in 1984 by then Sir Laurence Street CJ in R v Hayes (1984) 1 NSWLR 740 in relation to these types of offences:

“The trauma of re-entering a home that has been ransacked is in itself no light matter. This can cause a continuing uneasiness and disquiet at the knowledge that an unknown person has invaded their sanctity of the home.”

and

“The invasion of people’s homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts.”

13. As I have said, it is for these reasons that sentencing for offences of this kind must be seen as involving a significant element of deterrence.

14. As break and enter offences go, this, however, was not the most serious example. The items taken, namely the wallet and keys, were of relatively small value. On the other hand, the premises broken into involved a private home and it must have been obvious to the offender by reason of the presence of two cars in the garage, the wallet and keys in the kitchen, and the time of day at which the entry was made, that there was someone in the house. There are, however, none of the other forms of aggravation referred to in s 105A of the Crimes Act. While there was some slight damage caused to the garage door by the removal of wooden slats to gain entry, there was in this case no gratuitous vandalism and the offence involved little planning or sophistication. The lack of sophistication is also demonstrated by the fact that the offender left DNA evidence at the scene.

15. I agree in relation to this offence that, as the Crown submitted, it lies somewhere below the mid-range of objective seriousness.

16. Turning to the take and drive offence. Take and drive offences must also be regarded as serious, partly by reason of the maximum penalty of five years imprisonment but also by reason of just how common these types of offences are. This particular offence involved the taking of an expensive luxury vehicle which increases its seriousness. The offence was also committed in the home of the victim, which aggravates its seriousness, although I accept that there is a large degree of overlap between this offence and the break and enter offence which is count 1 of the indictment. This offence was not at all sophisticated. In fact, it was quite naïve and stupid, given that it involved a quite distinctive car with a unique number plate, ROTHKO, an apparent reference to the American abstract painter Mark Rothko. It was only a matter of time before a car like that was spotted, which of course it was when the offender’s friend James Garvey was stopped while driving the car the next day.

17. In my opinion the objective seriousness of this offence sits around the mid-range of objective seriousness.

18. In sentencing for both offences, I take into account the fact that they were committed while the offender was on conditional liberty, in that he was subject to an Intensive Correction Order which had been imposed on 6 February 2019, namely four months before the offences in question. This, however, does not increase the objective seriousness of the offences but it is an aggravating factor that I take into account in determining the appropriate sentences. It is also of relevance in determining the appropriate sentence that the offender has a history of committing similar offences.

19. Turning to subjective matters, the offender is currently aged 35 and was 34 at the time of the offences. His subjective circumstances have been placed before the Court by means of a psychological report, a medico legal report and an affidavit by the offender himself in which he affirms the information given to the psychologist.

20. According to the history given to the psychologist, the offender’s natural parents separated when he was two years old but his mother subsequently entered a relationship with another man who he treated as his stepfather. His mother and stepfather were unfortunately regular users of alcohol, cannabis and amphetamines at that time and had no formal employment. His stepfather was involved in a criminal gang and regularly was in trouble with the law. His stepfather was also described as being violent, including using violence in disciplining this offender.

21. In addition, the offender told the psychologist that he himself was sexually abused by a neighbour when he was aged only about five. Although this was apparently reported to the police and resulted in the perpetrator being convicted, the offender’s parents apparently lacked the capacity to provide him with emotional support and this abuse was never spoken about with them. The offender also has recently disclosed having been sexually abused by Corrections officers when he was in custody as a juvenile at about ages 14 to 15.

22. The offender told the psychologist that due to his parents’ inadequacies at that stage in his life, he spent minimal time with them from when he was about 14 years old. He said that from about that age he, instead, spent time within an antisocial, drug-using and deviant peer crowd and that since about age 14 he had spent the majority of his life in custody.

23. He also reported having been diagnosed with a learning disability and Attention Deficit Hyperactivity Disorder when in primary school and that, due to behavioural problems, he was expelled from two primary schools and later expelled also on two occasions from high schools. The history reported to the psychologist is given further support by its consistency with that reported to consultant psychiatrist Professor Robertson in his medico legal report of May 2020.

24. Ultimately, the psychologist made a diagnosis of a number of conditions, including Post-Traumatic Stress Disorder, stimulant and opioid use disorders, personality disorder with antisocial and borderline traits, and depression and Attention Deficit Hyperactivity Disorder. Regrettably, the offender has had no treatment for any of these conditions to date. However, there are civil proceedings on foot in relation to his sexual abuse whilst in juvenile detention which may, I am told, result in some treatment being commenced.

25. The offender has a long criminal history which includes numerous offences of a similar nature, as well as a variety of other offences. It is of real concern that, as noted in the submissions by his solicitor, he has since age 18 spent approximately 75% of his adult life in custody. It is concerning that the offender told the psychologist that he “fares better in gaol where there is routine”. The evidence suggests to a high degree of probability that he is at risk of being institutionalised, if that has not already happened. In these circumstances, it may well be that the imposition of further sentences of imprisonment on this offender will have little effect as a personal deterrent to him. Nonetheless, there remains the importance of general deterrence, retribution and protection of the community.

26. The offender’s background and in particular the difficulties associated with his upbringing as a child are matters that I have taken into account in accordance with the principles stated in the 2013 decision of the High Court in Bugmy v R [2013] 249 CLR 571. In that case, the Court stated that:

“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s makeup and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.”

27. In Mr Matthews’ case, I consider that these principles are enlivened and that his moral culpability should be regarded as somewhat reduced.

28. I have given consideration to whether there is any evidence of remorse or contrition for the offences. Given that this was a defended trial, it would ordinarily be difficult, if not impossible, to find any basis for a finding of remorse. However, I do note that in this case, as recorded by the psychologist at para 50, the offender expressed regret for his role in the current offences and said that “break and enters” when a person is home are likely to disrupt a person’s sense of safety and security and he was sorry about the possible impacts on the victim. He also said that it was wrong to take another person’s possessions, something they had worked hard to obtain. It seems to me, therefore, despite the plea of not guilty, that there is some, although somewhat limited, evidence of remorse and I do take that into account to the offender’s benefit.

29. In relation to prospects of rehabilitation, it is difficult to form a positive view about this, given the long history of offending which Mr Matthews’ record demonstrates. There is, however, some possible sunlight on the horizon in that he told the psychologist that he accepts that he needs help and the fact that he may, as a result of the recently commenced civil action, receive some psychological counselling or help in the future. I have had regard to that evidence, but I am unable to reach a conclusion other than that his prospects of rehabilitation might be regarded as guarded.

30. It was argued on his behalf that I should take into account in his favour the fact that he had elected for a judge-alone trial, and I note that there had been encouragement expressed by judges of this Court for accused persons facing trial to consider agreeing to the judge-alone option. I note that that encouragement arose in the light of the current COVID-19 pandemic and the difficulties that that has caused in conducting jury trials. I note that the Crown accepted that this argument was of relevance in this case and I am, therefore, satisfied that it is appropriate to have regard to that course of action pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 in that it facilitated the course of justice to some degree. That is another factor which I take into account in the offender’s favour.

31. It was also put to me that, given the current restrictions arising from the COVID-19 pandemic, and when I say “restrictions” I refer to the limitations or restrictions on visits by family and friends, that I should take that into account in making a determination about special circumstances and in relation to the degree to which I adjust any ratio between non-parole period and head sentence. Indeed, I have taken that into account.

32. I am satisfied in relation to the two offences that the s 5 so-called threshold has been crossed and that no penalty other than fulltime imprisonment is appropriate. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

33. I have also had regard to the important principle of totality. That principle, of course, requires that, when sentencing for more than one offence, a court must, after considering the appropriate sentence for each offence, stand back from that determination and consider the total period that an offender should spend in custody. That principle, of course, is in part designed to avoid the imposition of sentences which might be described as “crushing”. I have had regard to that principle and in this case it seems to me that the two offences should be regarded as largely, although not completely, a single related event. I am satisfied, however, that there should be some accumulation between them because they do involve two separate offences but that any accumulation should be fairly minimal.

34. I make a finding of special circumstances for varying the ordinary ratio between head sentence and non-parole period. I make that finding based on the importance of the offender having an extended period of supervision once he is released so that efforts can be made to address his psychological difficulties and drug use problems by having him engage with mental health and other professionals.

35. I intend to impose an aggregate sentence. Had I not done so, then the indicative sentences that I would have imposed are as follows.

36. Mr Matthews, the sentences that I am about to refer to are what are called “indicative sentences”. They are not the actual sentence that you will serve. I will make that clear at the end of my remarks.

37. The indicative sentence for count 1 is imprisonment for a period of three years nine months and a non-parole period of two years, six months. The indicative sentence for count 2 is a period of imprisonment of two years, six months.

38. Instead of those indicative sentences, I impose an aggregate sentence of four years imprisonment with a non-parole period of two years eight months. Those will date from 19 September 2019. The head sentence, therefore, will expire on 18 September 2023 and the non-parole period will expire on 18 May 2022.

27. I recommend that Mr Matthews be considered for admission to the Intensive Drug and Alcohol Treatment Programme run by Corrective Services.

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Decision last updated: 30 September 2020