R v Matthews

[2020] NSWDC 354

District Court

New South Wales

Medium Neutral Citation:

R v Matthews [2020] NSWDC 354

Decision date:

16 March 2020

Jurisdiction:

Criminal

Before:

Payne DCJ

Decision:

Sentence of imprisonment for three years nine months, with a non-parole period of two years three months

Catchwords:

SENTENCING – armed robbery, Crimes Act 1900, s 97(1) – guidelines for sentencing – R v Henry (1999) 46 NSWLR 346

SENTENCING – aggravating factors – breach of conditional liberty

SENTENCING – relevant factors on sentence – deterrence – moral culpability

SENTENCING – subjective considerations on sentence – Aboriginal offenders – mental illness – special circumstances

Legislation Cited:

Crimes Act 1900, s 97(1)

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

R v Henry (1999) 46 NSWLR 346

R v Murray (unrep, 11/9/86, NSWCCA)

R v Thomson and Houlton (2000) 49 NSWLR 383

R v Valentini (1989) 46 A Crim R 23

Category:

Sentence

Parties:

Regina (Crown)
Bo Matthews (Offender)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Offender)

File Number(s):

2019/95149

Judgment

1. In relation to this matter, Bo Matthews comes before the Court in respect of one offence. That offence is contrary to s 97(1) of the Crimes Act 1900. The maximum penalty prescribed for the offence is imprisonment for 20 years. There is no standard non-parole period.

2. He pleaded guilty to the offence at the earliest opportunity. He is entitled to a reduction of 25 percent for utilitarian considerations only. He adheres to his plea of guilty in this Court. I convict him of this offence.

3. In addition, he asks me to take into account two offences on a Form document. Those offences are as follows. 18 March 2019, larceny of cash from the Railway Hotel; 18 March 2019 at Gunnedah, malicious damage to a poker machine at the Railway Hotel. I will take those two offences into account when sentencing him. As the Crown notes, the two Form 1 offences ought to be taken into account. It is noted that they constitute separate criminality committed against a separate victim on another occasion five days prior. Weight must be given to the offences on the Form.

FACTUAL CIRCUMSTANCES OF THE OFFENCE

4. The factual circumstances of the offence contrary to s 97(1) and also the offences on the Form are found in the Crown sentence summary. The Form 1 offences are offences of larceny and malicious damage and, as I have said, took place five days prior to the s 97(1) offence. The agreed facts on sentence are as follows:

“1. The offender in this matter is Bo Matthews. At the time of the offence, he was subject to bail which was conditioned upon him attending and residing at Balund-a residential rehabilitation facility.

Sequences 2 and 3 (larceny and malicious damage) - Form 1

2. About 11.30 on 18 March 2019, the offender attended the Railway Hotel, Gunnedah. He was wearing a red Nike hoodie, pale blue drawstring pants, and black Nike runners. He entered the gaming room area at the hotel and sat at a poker machine in one of the corners of the room furthest from the door. At that time, there were two females also in the gaming room with whom the offender initially made conversation. He remained in the gaming room walking around and returning to the poker machine in the corner, however he did not place any money in the poker machine or attempt to play it.

3. After a period of time, the offender took a black jemmy bar from under his hoodie and began to prise open the locked wooden cabinet on which the poker machine was sitting, inside which was the power supply to the machine. The offender prised the door open, destroying the lock and causing damage to the door, a number of pieces of which chipped off onto the floor. Having gained entry to the cabinet, the offender unplugged the poker machine from the power supply.

4. The offender then used the jemmy bar to prise open the front panel of the poker machine itself. Once the panel opened, the offender removed the cash compartment from the poker machine and concealed it under his hoodie before leaving the premises. Throughout the period that he was in the gaming room, approximately 20 minutes, the offender was captured on CCTV looking repeatedly at the door, and periodically moving around the room, speaking with the two females who were also in the gaming room at the time.

5. After he left the gaming room, the offender was followed to the driveway to the side of the hotel by a hotel employee. She asked the offender to ‘come back inside’, to which he responded, ‘no’. She repeated the request three more times, the offender responding ‘no’ each time, before the employee returned inside and contacted the police.

Sequence 1 (armed robbery)

6. There is a Caltex Service Station located at 18 Single Street at the intersection of Russell Street, Werris Creek. This is a small service station with three petrol bowsers and a shop. Single Street is the main street of Werris Creek.

7. About 7.33pm, the offender walked from Russell Street towards the service station wearing a red long sleeved shirt with an Aboriginal art print shirt underneath, pale blue drawstring jeans and black Nike joggers with a brown/gold tick across the top of the foot. He had a brown/maroon jacket over his head and partly concealing his face. As he approached the service station, he was observed by John Ryan who was sitting out the front of his house on Russell Street.

8. The offender walked into the service station and then into the shop where the victim was standing at the counter with the till open, counting the day’s takings in preparation to close the service station at 8.00pm. The offender approached the counter and produced a large kitchen knife, roughly 30 centimetres in length, with silver blade and a black handle, holding it in his right hand pointing it in the direction of the victim. The offender demanded the victim ‘give me money’. The victim placed both hands in the air, walking backwards away from the counter, saying, ‘just take it’.

9. The offender placed the knife in his left hand, reaching over the counter with his right hand, grabbing the notes within the till. While doing so, he dropped a bundle of $20 notes on the ground. He again pointed the knife in the direction of the victim, saying, ‘get down and pick them up’. The victim complied, getting the bundle of $20 notes from the floor, placing it on the bench, where the offender grabbed the bundle and placed the cash in his pocket with the rest of the money. The offender walked out of the shop pulling the door open and ran off towards Russell Street and into Mayors Avenue, and then into the rear of xx Henry Street.

10. The victim activated the duress alarm and authorities were notified. The victim estimated there was roughly $500 to $600 in the till at the time. He did not sustain any injuries. The incident was captured on CCTV footage.

11. About 1.40pm on Monday 26 March 2019, police attended xx Henry Street, Werris Creek, to execute a crime scene warrant. While searching the rear yard of the address, police located a maroon Holden Commodore sedan. Police confirmed that there was a person in the boot of the vehicle, suspected to be the offender. The offender was informed that police were present for the purpose of arresting him for the armed robbery at the Caltex Service Station. The offender became agitated, yelling and claiming to have a knife, aggressively using what sounded like a knife to stab the top of the boot. Police were able to contain and negotiate the situation for approximately one hour. During this time, threats continued. The offender lit a small fire in the boot, which he then extinguished.

12. About 2.50pm, the offender was dehydrated and passed the knife to police. It was seized. He was handcuffed in the back seat and removed from the boot where he was attended to by ambulance officers. At the time, the offender was wearing a red shirt, light blue drawstring jeans and black joggers. Once he had moved away from the vehicle, he was sitting on the ground and kicked one of the joggers saying, ‘I know ya’s are going to take them anyway’.

13. The offender was conveyed to Tamworth Police Station, where he was introduced to the Custody Manager. Arrangements were made for a support person to attend who did, the offender was informed of his Part 9 rights of LEPRA 2002 and contact was made with the Aboriginal Legal Service. The offender was offered the opportunity to participate in an interview, which he declined. His refusal was recorded by police.”

5. Consideration was given, correctly so, in both the Crown submissions and the defence submissions, to the guideline judgment of R v Henry (1999) 46 NSWLR 346. Ms Mulock, in her careful submissions, addressed each of these factors. Young offender with little or no criminal history. This is applicable. Yes, 24 years old, some criminal history. Weapon like a knife, capable of killing or inflicting serious injury; yes, a knife. Limited degree of planning; I am of the view there was very limited planning. Limited, if any, actual violence but a real threat thereof; that feature is present but no actual violence. Victim in a vulnerable position such as a shopkeeper or taxi driver, and that includes service station attendants; and the victim here was a service station attendant. In fact, s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999 includes specifically a service station attendant. I am very mindful not to double-count. This feature has already been incorporated into the guideline judgment. Small amount taken; it was conceded correctly a relatively small amount. A plea of guilty, the significance of which is limited by a strong Crown case. This consideration is really only applicable in terms of the plea of guilty. The decision of R v Thomson and Houlton (2000) 49 NSWLR 383 was made subsequently to that of Henry and it was clarified in that case that the reduction that was applied in terms of the guideline was 10 percent. So in this case there is the plea of guilty but it is not the law that, in terms of the utilitarian value, that is limited by a strong Crown case. Indeed, as I understand it, this was an early appropriate guilty plea matter. The guideline, which of course is not a tramline, stated in the case of Henry is fortified in this for the full term.

6. The presence of aggravating and mitigating features will justify a sentence below or above the range. It was not argued in this case that anything other than a full-time custodial sentence was appropriate. It was submitted by Ms Mulock that the offence falls below the mid-range of objective seriousness. The Crown submission was that the offence is below the mid but above the low end of the range, effectively, as the Crown said, in keeping with the defence submission. In my view, it is certainly only just below or, in a band, there is the very bottom of the mid-range to the top of the low range.

7. The prisoner was born in December 1994. Accordingly, at the time of the offending he was aged 24. He will turn, as I understand it, 26 at the end of this year.

8. His background is considered in detail in the psychological report dated 31 October 2019. He certainly comes from a deprived background. He described an early pattern of substance issues, drinking alcohol and smoking cannabis from the age of eight. He was taking illegal drugs at the time of the index offences and continued to struggle with ongoing cravings to use drugs whilst in custody; that is found at para 15 of the report. He is on medication for depression. The report says at para 24:

“Mr Matthews’ clinical presentation was consistent with impaired cognition. His answers to questions were simplistic and concrete, and his ability to comprehend and express himself adequately, as expected for his age, appeared impaired.”

In the summary in Clinical Opinion, at para 37:

“According to current cognitive testing, Mr Matthews’ overall intellectual capacity was consistent with mild intellectual disability.”

Paragraph 42:

“Concerning any causal connection between Mr Matthews’ symptoms of intellectual disability and his involvement in the index offences, the two are considered linked. He is likely to be less able to predict outcomes of behaviour or to formulate alternative solutions to problem situations readily or independently. His capacity for rational thought is also considered to have been further diminished by his daily drug use.”

9. He is a Kamilaroi man and, as I have noted, now aged 25 years at the time of sentence. He relies on the psychological report which I have quoted from. Ms Mulock argued that his childhood was one of disadvantage and the well-known principles set out in the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 are applicable in this case. I accept that submission.

10. It was said by his solicitor his mental condition has the effect of reducing a person’s moral culpability, and matters such as general deterrence, retribution and prevention have less weight. In my view, there can be some moderation of his moral culpability and in relation to general deterrence, his mental condition affects the importance of general deterrence. However, it is the position that general deterrence must still remain a feature of this sentencing exercise. So there will be some moderation of the requirement for general deterrence but it remains a feature, as I have said, of the sentencing exercise.

11. It will be necessary to go over in some detail the background of his offending. This is the first time he has been in full-time custody. On 23 June 2018 he had an offence of stalk/intimidate and carry cutting implement. He was then granted bail. There was then an offence on 27 June 2018 of assault occasioning actual bodily harm. He was then granted bail. On 9 July 2018 he had a further offence of contravention of a prohibition in a domestic apprehended violence order. It was then that he was bail refused, so was in custody from 9 July 2018. He was then given the benefit of bail, it seems that was on 27 August 2018 but he did not enter it until 30 August 2018 and went into the Balund-a Program. The Court does not have any report from that program, nor any explanation as to why the matter was not brought to the Court’s attention that this was a breach of bail. That is so because there is no reference that has been brought forward by either party to indicate this took place. The relevance of that is because he absconded from the program on 5 November 2018. So while having absconded on bail from a rehabilitation program, he committed the offences on the Form. That was on 18 March 2019. He was not apprehended in respect of those matters until after the armed robbery offence. That took place on 23 March 2019 and he was arrested on 26 March 2019 and came into custody.

12. He then appeared before the Local Court on 7 November 2019 and for the assault occasioning actual bodily harm, going back to 27 June 2018, he was given a sentence of six months to date from 2 January 2019, expiring on 1 July 2019. It was accepted by his solicitor he was given credit for the pre-sentence custody from when he was bail refused between 9 July 2018 and when he entered bail on 30 August 2018 and, further, an allowance was made in relation to his period of time in quasi-custody in the Balund-a Program between 30 August 2018 and 5 November 2018.

13. Both sides of the bar table submitted that the sentence to be imposed should commence from 26 March 2019.

14. In addition, at the time of the sentencing on 7 November 2019, he was ordered to enter into a community correction order for 15 months. That will not complete until 6 February 2021. That was for the offences of contravene an apprehended violence order and stalk/intimidate. In relation to the carry cutting implement, it was a s 10A. He was, of course, also subject to bail, the Balund-a bail that he was in breach of and absconded on at the time of the offences on the Form. It is a feature of aggravation that he committed this offence while subject to conditional liberty.

15. There is no victim impact statement. This must have been a very frightening experience for the victim, as the Crown said, having the knife pointed at him, the knife being some 30 centimetres in length. The Crown noted there was no actual violence but that the conduct of the accused in pointing the large knife at the victim, including while leaning over the counter to obtain the cash, conveys a clear and not insignificant threat of violence.

16. This is a matter I took into account in respect of the objective seriousness but it is also a feature in terms of what I accept must have been the effect on the victim. That is not to elevate it to a feature of aggravation. One of the purposes of sentencing found in s 3A Crimes (Sentencing Procedure) Act is “(g) to recognise the harm done to the victim of the crime and the community”. It is in this way I take into account the effect on the victim.

17. Offences of armed robbery have always been considered very serious. It was said over 20 years ago that a robbery, with or without arms, is to be regarded “in virtually all circumstances as an offence of the utmost gravity, which must carry a custodial sentence”: R v Murray (unrep, 11/9/86, NSWCCA); R v Valentini (1989) 46 A Crim R 23. The seriousness of it is also, of course, reflected in the maximum penalties prescribed by the legislature. As was said in Henry by Spigelman CJ at [99]:

“Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establishes armed robbery to be a serious crime which requires condign punishment.”

18. It cannot, of course, be said he is a person of prior good character. In my view, given the recent offending, his record is one which disentitles him to leniency.

19. In respect of remorse, Ms Mulock said that the highest she could put it was as noted at para 23 of the psychological report:

“When given the opportunity to discuss his current feelings regarding the offences, Mr Matthews said, ‘It’s stupid, I wasn't in the right state of mind, I just wanted to see my kids.’”

20. The relevant provision is found in 21A(3)(i) Crimes (Sentencing Procedure) Act:

“the remorse shown by the offender for the offence but only if –

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage, or both”.

21. In my view, even on the balance of probabilities, this mitigating feature is not established.

22. In respect of whether he will or will not re-offend, the report actually says at para 31:

“Mr Matthews was found to be at high risk of re-offending. Those in this category are recommended to complete programs in custody relevant to the identified risk factors.”

23. Despite this, I do not make a finding one way or the other whether he is likely or not likely to re-offend. The matter is neutral. It is very hard to predict future behaviour. It is my view though that his prospects of rehabilitation must be guarded.

24. I have already said in my view nothing other than the imposition of a full-time custodial sentence is appropriate.

25. The Court in every case must bear in mind the maximum penalty prescribed and the particular facts and circumstances, both objective and subjective, of the case and the requirement for general deterrence. The effective non-parole period imposed in this case is the one which in my view appropriately reflects the objective seriousness of the offending, the requirement for general deterrence, as I have stated, both of these matters are to be reflected in this case, and the subjective matters.

Sentence

26. The sentence I would have imposed prior to reduction of 25 percent for the utilitarian considerations is five years. That reduced is three years nine months. The formal orders I make are as follows:

Taking into account the offences on the Form 1, I impose a non-parole period of two years and three months commencing on 26 March 2019 and expiring on 25 June 2021. The total term is three years and nine months commencing on 26 March 2019 and expiring on 25 December 2022.

27. I have found special circumstances in this case but the allowance I have given in respect of the sentence and the non-parole period is the one which in my view is appropriate in this case. He will need treatment in the community upon his release, his age and this is the first full-time custodial sentence to be imposed upon him. Special circumstances are found and the allowance for special circumstances is six months.

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Decision last updated: 06 July 2020