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R v Mattiusi (No.3)

R v Mattiusi (No.3)

Case [2022] NSWDC 406 9 September 2022

Criminal Liability

Sentencing

Domestic Violence Offences

Sexual Assault

Intimidation

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Mattiusi (No.3) [2022] NSWDC 406
Hearing dates: 9 September 2022
Date of orders: 9 September 2022
Decision date: 09 September 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 84 - 89

Catchwords:
CRIME – sentence – domestic violence offences - multiple counts of sexual assault – offence of intimidation

Legislation Cited:
Crimes Act 1900 (NSW) ss 61I
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 11, 13(1), 39
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 4A, 5, 21A

Cases Cited:
Bussey v R [2020] NSWCCA 280
CherryvR [2017] NSWCCA 150
Cheungv The Queen (2001) 209 CLR 1
Filippouv The Queen (2015) 89 ALJR 776
Kelly v R [2022] NSWCCA 189
Kiss v R [2021] NSWCCA 158
Leachv The Queen (2007) 230 CLR 1
Patel v R [2019] NSWCCA 170
RvDaley [2010] NSWCCA 223
RvHibberd (2009) 194 A Crim R 1
R v Mostyn (2004) 145 A Crim R 304
Savvasv The Queen (1995) 183 CLR 1 at 8
SC v R [2019] NSWCCA 25
The Queenv Olbrich (1999) 199 CLR 270

Texts Cited:
E Buxton-Namisnyk and A Butler, “What’s language got to do with it? Learning from discourse, language and stereotyping in domestic violence homicide cases” (2017) 29 Judicial Officers’ Bulletin 49

Category: Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
M Mattiussi (offender)
Representation:
Counsel:
Mr E McMahon for the offender
Ms E Winborne
Solicitors:
ODPP
Total Legal for the offender

File Number(s): 2020/00145510
Publication restriction: Non-publication of victim’s name in accordance with s 578A Crimes Act 1900

EX TEMPORE SENTENCING REMARKS

Introduction

On 27 June 2022, a jury delivered verdicts of guilty, following a trial which I presided over in Newcastle. The guilty verdicts were rendered on two counts of sexual assault, contrary to s 61I of the Crimes Act 1900 (NSW) (the ‘sexual assault offences’) and one count of intimidating the victim with the intention of causing her to fear physical harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the ‘intimidation’ offence). The offender is now before the Court for sentencing^[1].
1. The sentencing hearing scheduled for 12 August 2022 was adjourned as a result of industrial action.
The maximum penalty for the offence of sexual assault is 14 years’ imprisonment with a statutory non-parole period of 7 years.
The maximum penalty for the intimidation offence is 5 years imprisonment (and/or 50 penalty units). There is no statutory non-parole period for the intimidation offence.

Approach to sentencing after jury verdict

My fundamental task is to sentence the offender on facts which conform with the jury’s verdict. In Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”. In

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 Mattiusi (No.3)

Details

AGLC: R v Mattiusi (No.3) [2022] NSWDC 406
Case: [2022] NSWDC 406
Decision Date: 09 September 2022

CaseChat Overview and Summary

The case of R v Mattius (No.3) involved the defendant, Mattius, who was charged with multiple counts of sexual assault and one count of intimidation. The dispute reached the court, where it was necessary to determine the appropriate sentence for Mattius in light of the severity and frequency of his crimes. The court was tasked with considering the specific circumstances of each offence, the impact on the victims, and the principles of sentencing for domestic violence offences.

The primary legal issues before the court were whether the cumulative effect of the offences warranted a harsher sentence and how to appropriately balance the need for punishment, deterrence, and rehabilitation. The court needed to weigh the aggravating and mitigating factors present in Mattius's case, including the nature of the offences, the impact on the victims, and any relevant background information that could inform the sentencing decision.

In delivering the judgment, the court meticulously reviewed the evidence and arguments presented by both parties. It considered the precedents and guidelines for sentencing domestic violence offences, as well as the statutory framework governing such cases. The court determined that the cumulative effect of the offences, along with the aggravating factors, justified a more severe sentence. The court ultimately decided that Mattius should be sentenced to a term of imprisonment, with specific details regarding the length and conditions outlined in the final orders.

Orders

Orders of the court

See paragraph 84 - 89

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 Mattiusi (No.3) [2022] NSWDC 406

Most Recent Citation

Mattiussi v The King [2023] NSWCCA 289

Cases citing this decision · 1 of 1 shown

Mattiussi v The King
[2023] NSWCCA 289 Para 8

…The nature of the offending is set out in detail in the remarks on sentence of Abadee DCJ: R v Mattiusi (No 3) [2022] NSWDC 406 at [7]-[33].…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Kelly v R
[2022] NSWCCA 189 Para 41

…The ‘shortness’ of duration of the offences does not lessen the objective gravity of the offending. As Adamson J recently explained in Kelly v R [2022] NSWCCA 189 at [33] sexual offences measured in minutes rather than, say, hours, can still have lifelong effects.…
Kiss v R
[2021] NSWCCA 158 Para 40

…es not appreciably assist the offender. In my view, following the example of what Simpson AJA determined (Bellew J and Wilson J agreeing) in Kiss v R [2021] NSWCCA 158 (“ Kiss ”) at [75], I would have found that the level of his recklessness was of such a high order as to amount to knowledge; and, certainly, a findi…
Bussey v R
[2020] NSWCCA 280 Para 42

…For both offences, it is not a mitigating factor that the offending occurred within an existing relationship: Bussey v R [2020] NSWCCA 280 per Harrison J (Hoeben CJ at CL and Bellew J agreeing); also Kiss at [80] – [102]. Thus, I reject the proposition that any prior sexually ‘adventurous’ relationship between the o…
Yaman v R
[2020] NSWCCA 239 Para 52

…In Yaman v R [2020] NSWCCA 239 at [135] Wilson J (Fullerton and Ierace JJ agreeing) said:…
Patel v R
[2019] NSWCCA 170 Para 50

…There are cases where the bare circumstance that an offence occurred at a victim’s home is not aggravating (e.g. Patel v R [2019] NSWCCA 170). It may be accepted that part of the background to the offending, in a general sense, was consensual sexual activity in the same home where the offender assaulted the victim.…
SC v R
[2019] NSWCCA 25 Para 37

…of an existing sexual relationship. In itself, the offending constituted a form of domestic violence and had multiple potential consequences ( SC v R [2019] NSWCCA 25).…
Cherry v R
[2017] NSWCCA 150 Para 51

…In Cherry v R [2017] NSWCCA 150, Johnson J at [78] (Macfarlan JA and Harrison J agreeing) said:…
Filippou v The Queen
[2015] HCA 29 Para 5

…shed beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776 at [64], [66]. The offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour: Filippou v Th…
R v Daley
[2010] NSWCCA 223 Para 34

…forced intercourse, the circumstances of humiliation … the duration of the offence”: R v Hibberd at [56], cited with approval in R v Daley [2010] NSWCCA 223 at [48]. In R v Daley at [48], Price J (Hodgson JA and Fullerton J agreeing) clarified what was said in R v Hibberd about the duration of an assault:…
Leach v The Queen
[2007] HCA 3 Para 5

…he accused unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776 at [64], [66]. The offender bears the burden of proving on the balance of probabilities matters which…
Cheung v The Queen
[2001] HCA 67 Para 4

…sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict ”. In Cheung v The Queen (2001) 209 CLR 1 the plurality in the High Court summarised the law at [11] - [14]. I have had regard to those principles in finding the following facts.…
R v Olbrich
[1999] HCA 54 Para 5

…ccount in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776 at [64], [66]. The offender bears the burden of pro…
Savvas v R
[1995] HCA 29 Para 4

…My fundamental task is to sentence the offender on facts which conform with the jury’s verdict. In Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “ a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict ”. In Cheu…
The Queen v Olbrich
[1999] HCA 5418 Para 5

…ot take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776 at [64], [66]. The offender bears the b…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 3A, 4A, 5 5 mentions (from Para 49)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
11, 13(1), 39 4 mentions (from Para 1)
Crimes Act 1900 (ACT)
61I 2 mentions (from Para 1)

Medium Neutral Citation:	R v Mattiusi (No.3) [2022] NSWDC 406
Hearing dates:	9 September 2022
Date of orders:	9 September 2022
Decision date:	09 September 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 84 - 89
Catchwords:	CRIME – sentence – domestic violence offences - multiple counts of sexual assault – offence of intimidation
Legislation Cited:	Crimes Act 1900 (NSW) ss 61I Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 11, 13(1), 39 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 4A, 5, 21A
Cases Cited:	Bussey v R [2020] NSWCCA 280 CherryvR [2017] NSWCCA 150 Cheungv The Queen (2001) 209 CLR 1 Filippouv The Queen (2015) 89 ALJR 776 Kelly v R [2022] NSWCCA 189 Kiss v R [2021] NSWCCA 158 Leachv The Queen (2007) 230 CLR 1 Patel v R [2019] NSWCCA 170 RvDaley [2010] NSWCCA 223 RvHibberd (2009) 194 A Crim R 1 R v Mostyn (2004) 145 A Crim R 304 Savvasv The Queen (1995) 183 CLR 1 at 8 SC v R [2019] NSWCCA 25 The Queenv Olbrich (1999) 199 CLR 270
Texts Cited:	E Buxton-Namisnyk and A Butler, “What’s language got to do with it? Learning from discourse, language and stereotyping in domestic violence homicide cases” (2017) 29 Judicial Officers’ Bulletin 49
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (ODPP) M Mattiussi (offender)
Representation:	Counsel: Mr E McMahon for the offender Ms E Winborne Solicitors: ODPP Total Legal for the offender
File Number(s):	2020/00145510
Publication restriction:	Non-publication of victim’s name in accordance with s 578A Crimes Act 1900