Matthews v R

Judgment 1MACFARLAN JA: I agree with Hamill J. 2FULLERTON J: I agree with Hamill J. 3HAMILL J: Shaun Harvey Matthews (the applicant) seeks leave to appeal against a sentence imposed on him on 13 November 2013, and adjusted on 14 November 2013, by his Honour Judge McLoughlin SC in the District Court. The applicant raises two grounds of appeal. The first ground is a discrete technical one while the second is based on the general proposition that the sentence imposed on him was manifestly excessive and unjust. 4On 13 November 2013 the applicant stood for sentence in relation to 2 offences of dishonestly obtaining a financial advantage by deception. Those offences were charged pursuant to s 192E(1)(b) of the Crimes Act 1900 (NSW). The facts of the offences involved the applicant using charge cards in other people's names to purchase goods from stores in the Charlestown Square shopping complex. The first offence involved obtaining goods to the value of just under $900 and the second involved obtaining goods in the amount of around $245. In relation to the second offence the applicant asked that two further offences under s 192E(1)(b) be taken into account pursuant to the provision in s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The total amount of the property obtained in respect of the matters on the Form 1 was a little less than $100. 5The applicant pleaded guilty in the Local Court and was committed for sentence. On 13 November 2013 the applicant was sentenced as follows: (1)Imprisonment for 2 years and 4 months commencing 11 August 2014 and expiring 10 December 2016 with a non-parole period of 1 year 9 months expiring 10 May 2016. (2)Imprisonment for 2 years and 4 months commencing 11 November 2014 and expiring 10 March 2017 with a non-parole period of 1 year 9 months expiring 10 August 2016. 6It will be seen that the primary Judge imposed the same sentence in respect of each offence, made the sentences largely concurrent but accumulated them by a period of three months. In the result there was a total effective sentence of 2 years and 7 months with a total effective non-parole period of 2 years. 7The sentences came to be adjusted the following day because the sentence imposed upon the applicant was contrary to law. It was not open as a matter of law for the sentencing Judge to commence the first sentence on 11 August 2014. His Honour appears to have chosen that date based on the fact that the applicant had breached parole and his parole had been revoked. However, it was open to the applicant to re-apply for parole at the expiration of an un-related sentence for an offence of break enter and steal which was due to expire on 28 May 2014 ("the pre-existing sentence"). 8Commencing the sentence partway through the balance of term created the practical difficulty that there may have arisen a gap in the applicant's period in custody. It was also contrary to s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That section concerns the commencement dates of sentences and is in the following terms: "47 Commencement of sentence (1) A sentence of imprisonment commences: (a) subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed, or (b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence. (2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. (4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. (6) A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires." 9Accordingly, it was open to the Judge to commence the sentence on the 29 May 2014 (that is to say the day after the expiration of the pre-existing sentence) or on an earlier date. It was not open to the Judge to impose a sentence commencing at any time after 29 May 2014. It appears that the parties did not bring the provisions of s 47 to his Honour's attention during the course of the sentencing proceedings. 10When the error was realised, the parties jointly applied to the Judge to reopen the sentencing proceedings and to make an adjustment to the commencement date of the sentences or sentence. This occurred on 14 November 2013. The sentencing Judge adjusted the commencement date for the first offence to the 29 May 2014 (that is, the day after the expiration of the sentence for the unrelated break and enter). However, his Honour did not adjust the commencement date in respect of the second sentence. 11Thus, the date upon which the applicant will be eligible for parole remained the same even though the commencement date was brought forward by a period of around 2 ½ months. The practical result of this (by my calculation) was that the total effective sentence was increased to 2 years 9 months and 13 days and the total effective non-parole period was increased to 2 years 2 months and 13 days. The extent of accumulation between the two sentences was increased from 3 months to 5 months and 13 days. 12Contrary to the submissions of the respondent in this Court, counsel for the applicant at first instance did not agree or consent to this course. He did acknowledge that it would be open to the sentencing Judge as a matter of law to take this approach. Whether that concession was well founded is not a matter with which I need to concern myself. It was certainly open as a matter of construction of the statute but whether it was open, giving proper effect to principles of totality and finality, is a different matter. 13The applicant contends that the adjustment of the sentence and its increase offended the findings as to totality made by the sentencing Judge on 13 November 2013. 14His Honour referred to the principles of totality and it is apparent that his application of that principle was concerned solely with the two offences with which he was dealing. His Honour had no evidence before him as to the facts of the unrelated break enter and steal offence. Nor did his Honour have any evidence before him as to the offence for which the applicant was on parole at the time. Accordingly, it was not possible for his Honour to have come to any conclusion concerning the totality of all of the applicant's offending. The only application of the principle of totality was with respect to the two offences with which he was dealing and the matters on the Form 1. 15His Honour was of the opinion that he was dealing with the matter pursuant to the common law "slip rule". However, it was probably more accurate to say that he was dealing with the matter pursuant to the jurisdiction in s 43 to reopen sentencing proceedings and to correct penalties that were imposed "contrary to law." The distinction between the operation of the common law "slip rule" and s 43 was discussed by the High Court in Achurch v The Queen [2014] HCA 10. The High Court noted that the provision in s 43 had a wider application than the common law "slip rule". The distinction does not need to be considered further here as both parties agreed then, and both parties agree now, that his Honour had the power to adjust the sentences in order to correct the error that occurred when sentence was imposed on 13 November 2013. 16The applicant has relied upon the decision of this Court in Thompson-Davis v R [2013] NSWCCA 75. In that case, a sentencing Judge called upon to adjust a commencement date of a sentence, increased the length of the sentence in order to maintain the release date that had originally been set. This Court (Beazley P, Hall and Campbell JJ) held that the sentencing judge erred in taking into account an irrelevant consideration, namely his previous determination that the sentence should not expire until a particular date. Thompson-Davis concerned a single sentence, and an adjustment to that sentence, relating to a single offence. I can see no relevant distinction to the present case, in circumstances where the sentencing Judge had reached a final conclusion as to the appropriate total effective sentence and total effective non-parole period by reference to his consideration of the totality of the criminality in the matters that came before him. 17In my opinion, his Honour fell into error in adjusting the sentences in such a way that the applicant was exposed to a total sentence (and non-parole period) of 2 ½ months longer than had originally been considered appropriate. 18Accordingly the Court must intervene to correct that error. 19It is conceded by the applicant that correction of that error is a discrete matter and would not enliven the Court's jurisdiction to re-sentence the applicant to a term that the Court considers appropriate. 20However, the applicant raises a ground that the sentence is manifestly excessive. I am of the opinion that this ground should also be upheld. 21The offences with which the applicant was charged involved a relatively small amount of money. The section under which he was charged captures offences which can run to defalcations in the millions of dollars: cf R v Hawkins (1989) 45 A Crim R 430 at 435. The total amount of property obtained by the four deceptions encompassed by the charges and Form 1 matters here was just over $1,200. The offending itself was unsophisticated and involved very little planning. Whilst credit card fraud of this kind must be deterred by the imposition of substantial penalties, in the present case the imposition of a custodial sentence to be served in full time custody adequately reflects the need for deterrence. Sending messages of general deterrence does not involve the imposition of sentences disproportionate to the criminality involved in the particular offence. 22I am conscious of the fact that the ground of appeal here contended is one which requires the Court to come to the conclusion that the sentence imposed below was manifestly wrong or plainly unjust: cf Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. I am equally conscious of the fact that "there is no single correct sentence" (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [27]) and that an intermediate appellate court will generally allow a sentencing Judge a wide discretion in determining the appropriate penalty to be imposed in any given case. 23A matter which plainly operated upon the sentencing Judge's mind was the criminal history of the applicant. His criminal history is a very bad one and includes many offences of dishonesty. That record commenced when the applicant was a child and has continued, more or less unabated, since that time. He was sentenced to a control order in the Children's Court for larceny and break and enter in 2002. Again in 2003 he was sentenced to a control order in the Children's Court for offences of dishonesty. He has twice been subject to sentences of imprisonment in the District Court including a sentence of 8 years with a non-parole period of 4.5 years in 2008 for what was obviously a serious offence of aggravated break enter and commit a serious indictable offence whilst armed. 24While that criminal record disentitled the applicant to leniency, he was not to be sentenced again for his criminal history. Nor did his criminal history, justify the imposition of a sentence disproportionate to the criminality of the offending: Veen v The Queen (No. 2) (1988) 164 CLR 465. 25On the other hand, the fact that the offences were committed when the applicant was on parole was an aggravating feature properly to be taken into account in assessment of the objective criminality and the proper sentence. 26The sentencing Judge said that he took the early plea of guilty into account. Assuming a discount of around 25%, the starting point for each sentence must have been around 3 years. In my opinion that starting point and the total effective sentence of two years and seven months with a non-parole period of two years is plainly unjust given the objective criminality of the present offence and taking into account the principles of sentencing, maximum penalties and purposes of punishment. 27The learned sentencing Judge did not make a finding of special circumstances whereby the non-parole period would be adjusted in spite of the fact that the sentences were accumulated upon a pre-existing sentence. The result of this was that the total period of parole was only about 13% of the total effective sentence (that included the pre-existing sentence for break enter and steal). It has been held on many occasions that accumulation of sentences may amount to special circumstances and that in some cases it is erroneous for the learned sentencing Judge to fail to find special circumstances when there is such accumulation if no reasons are given: see, for example, R v Simpson (1992) 61 A Crim R 58 at 61 (Hunt CJ at CL), Perry v R [2006] NSWCCA 351; (2006) 166 A Crim R 385 at [16] (Rothman J) and Ghamaraoui v R [2009] NSWCCA 111 at [20] (Grove J) and [28] (Howie J). 28There is no specific ground of appeal asserting error in that regard. However, in re-sentencing the applicant I will make a finding of special circumstances based on the accumulation between the current sentences and the pre-existing sentence. My objective is to ensure that the applicant has a period on parole whereby he can re-adjust to community life and be subject to supervision. 29In my opinion the appropriate sentence for each offence, taking into account the Form 1 matters in respect of the second offence and noting that the first offence involved a greater sum, is one of 2 years. I would find special circumstances in the accumulation and impose a non-parole period of 12 months. Like the sentencing Judge, I would accumulate the sentences to a degree of 3 months. The total effective sentence for these two offences would become 2 years and 3 months with a non-parole period of 1 year and 3 months. 30I would make the following orders: (1)Application for leave to appeal granted. (2)Appeal allowed. (3)The sentences imposed in the District Court are quashed and in lieu thereof the offender is sentenced: (a)In respect of sequence 1, to a non-parole period of 12 months commencing on 29 May 2014 and expiring on 28 May 2015 with a balance of term of 12 months. (b)In respect of sequence 2, to a non-parole period of 12 months commencing on 29 August 2014 and expiring on 28 August 2015 with a balance of term of 12 months expiring on 28 August 2016 (4)The applicant is to be released to parole at the expiration of the non-parole period for sequence 2.