R v Matthews No. Sccrm-03-107

R v MATTHEWS
[2003] SASC 228
Court of Criminal Appeal: Mullighan, Debelle and Gray JJ

MULLIGHAN J The appellant pleaded guilty in the District Court to two counts of common assault and one count of aggravated serious criminal trespass in a place of residence.
He was sentenced to imprisonment for 20 months to be served at the conclusion of a previous sentence, making a total head sentence of four years and five days - which I understand was to commence on 11 May 2002, the day upon which he was taken into custody - and a non-parole period of one year, one month and 13 days was fixed which was to commence on 28 March 2003, the day upon which he was sentenced.
It is that sentence against which the appellant appeals.
The circumstances of these offences are that he and Ms Willans had been living together for different periods prior to 20 April 2002 when the offences were committed. They had a dispute as to personal property and the appellant was ejected from her flat at Hove on an earlier occasion.
On the occasion of the offences, Ms Willans had been out with a male friend, Mr Graham, who was staying with her. She returned to her home with Mr Graham at about 4.30 am The appellant went to and entered the flat at about 5 am and made demands of Ms Willans regarding personal property. Ms Willans asked him to leave the flat. He did not do so and she eventually went to call the police and went outside with her mobile telephone.
The appellant followed her and proceeded to the front garden. He grabbed her and a struggle ensued for a few minutes. Mr Graham came to the rescue. The appellant punched him on the chin on one occasion, which did not cause any injury. Ms Willans and Mr Graham went back into the flat and the door was locked. The appellant forced entry by breaking down the back door. Ms Willans had remained in the flat; Mr Graham left.
The appellant acknowledged that he broke into the flat with the intention of confronting Mr Graham. The assault upon Ms Willans consisted of grabbing and struggling with her. The assault upon Mr Graham was the punch on his chin.
The prosecutor submitted that, whilst the offending was serious at the time from the point of view of Ms Willans and Mr Graham, it was at the lower end of the scale of trespass offences.
At the time of the offences, the appellant was aged 28 years. He left school at year ten and obtained work as a motor car dealer. He held employment from time to time, but has not worked since 1997. The appellant has a long history of criminal offending commencing as a youth and continuing with crimes of increasing seriousness. His previous offences include minor drug offences and offences involving dishonesty as a youth.
In 1995, he was convicted of the offence then known as breaking and entering a building to commit an offence and was sentenced to imprisonment for ten months, which sentence was suspended.
In 1998, he was convicted of three offences of breaking and entering a building, various other offences involving dishonesty, and assault. He was sentenced to imprisonment for four years with a no-parole period of 12 months.
In 2000, the appellant was convicted of various offences including assaulting police, carrying an offensive weapon, damaging property, being unlawfully on premises, and two counts of unlawful possession. He was sentenced to imprisonment for a total period of three years, three months and eight days.
In 2001, he was convicted of other offences involving dishonesty and was sentenced to imprisonment for a total period of two years, nine months and 13 days with a non-parole period of five weeks.
It may be seen that the appellant has served a considerable part of the last eight years in prison. He was released on parole on 17 December 2001 and committed the offences which are the subject of this appeal a little over four months later. It is a matter of aggravation that he committed these offences whilst on parole.
The appellant has been in custody with respect to those offences since 11 May 2002. As at the date of these offences, the balance of the earlier sentence which has not yet been served was two years four months and five days.
Victim impact statements made by both Ms Willans and Mr Graham were placed before the learned Sentencing Judge.
Ms Willans sustained slight bruising to her wrist and states that she has been emotionally distressed and fearful. She incurred the cost of replacement for the door of the flat.
Mr Graham did not sustain any lasting injury but informed the learned Sentencing Judge, through the victim impact statement, that he had suffered emotionally, including fear and distress.
The learned Sentencing Judge had to fix what he called a “notional” head sentence and non-parole period. He imposed one sentence for all three offences and fixed that notional head sentence of imprisonment for 20 months. He said that but for the pleas of guilty, he would have fixed a sentence of imprisonment for two years. That sentence is to be served at the expiration of the unexpired sentence. Taking into account the short period which the appellant had served in custody, the total sentence to be served became four years and five days.
The appellant had maintained pleas of not guilty to all of the charges and pleaded guilty on the morning the trial was due to commence. It is clear he pleaded guilty on an agreed factual basis, which was different from allegations originally made by Ms Willans and Mr Graham. In the circumstances, the learned trial judge correctly reduced the sentence which he would have imposed but for the pleas of guilty.
At the time of sentencing the appellant had been in custody for a total period of 10 months and 17 days with respect to the present offences. For that reason the learned Sentencing Judge reduced the sentence which he imposed and fixed the non-parole period of one year, one month and 13 days, which I have mentioned. He declined to suspend the sentence.
The sole ground of the appeal is that the sentence is manifestly excessive. It was not suggested by the appellant that there was error which may be identified in the sentencing remarks of the learned trial judge. The contention of the appellant is that the offending occurred over a short period of time, when he was in an emotional state and was relatively harmless, in that there was no significant physical injury or substantial damage to the property. Of course, it is acknowledged that the offending, nevertheless, was serious, it was an assault upon two people and the forced entry into a private home.
In my view the starting point of the learned trial judge in fixing a notional sentence of two years was manifestly excessive in the circumstances. It must be stated, in clear terms, that this sort of offending involving physical assault, even without injury, and the breaking into a private home, must be viewed seriously by the courts. The courts must do what they can to send a clear message to persons who are minded to behave in the same way as the appellant behaved and to deter that sort of conduct. General deterrence must play a significant part in the sentencing process, and so far as this appellant is concerned, he must also be deterred personally from behaving in this way in the future.
I accept that the conduct was impulsive, which distinguishes it from the usual sort of aggravated criminal trespass. It was of a different nature than his prior offences and, of course, it has had serious consequences for him, in that he has had to return to prison and must serve the unexpired portion of his previous sentence, as well as the sentence which must now be imposed. It is for those reasons that I think this Court should intervene.
The starting point, in my view, should be the one sentence for all three offences, of imprisonment for 12 months, to be reduced by three months on account of the pleas of guilty. That sentence must be served at the expiration of the unexpired portion of the previous sentence, which will make a total head sentence of three years, one month and five days. I would commence the consideration of a non-parole period by fixing a period of 18 months, which accords with the proportion which the learned Sentencing Judge considered to be appropriate.
The appellant has been in custody since 11 May last year, which is a period of approximately 10 and a half months. I would reduce the sentence which is now imposed for that reason, and the non-parole period, with the consequence that the total head sentence should be two years and two months, and the non-parole period would be reduced to seven months. Those sentences should commence as from 28 March 2003. I would allow the appeal.
DEBELLE J I agree. It is clear that the assaults in this case did not result in any serious injury. It is also apparent that the appellant broke into the premises whilst undergoing a good deal of emotional stress, by reason of the breakdown of the former relationship with one of the victims. Regard must be had to the wide variety of circumstances which constitute the offence of serious criminal trespass. This court is only too well aware of the concerns about the prevalence of the offence which is now called serious criminal trespass but, I repeat, the sentence in each case must reflect particular facts and circumstances, both of the offending and of the offender. I believe that the sentence which has been prescribed by Mullighan J is an appropriate sentence, having regard to the particular facts and circumstances of this case. I, too, would allow the appeal.
GRAY J I agree.
MULLIGHAN J The order of the court is that the appeal be allowed and the total head sentence reduced to two years and two months, with a non-parole period of seven months, both to commence on 28 March 2002.

[2003] SASC 228

21 July 2003