Matthews v R

Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIME – appeals – appeal against sentence – one count of not stopping and driving a vehicle dangerously knowing that police officers were in pursuit of the vehicle – one count of assaulting a police officer in the execution of his duty – guilty plea – where the applicant was serving the balance of parole
SENTENCING – appeal against sentence – whether the sentencing judge erred in the consideration of totality and a finding of special circumstances – whether the sentence was manifestly excessive – no point of principle – leave to appeal granted – appeal dismissed

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Crimes Act 1900 (NSW) ss 51B(1), 60(1)
Criminal Procedure Act 1986 (NSW) s 166

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Edquist-Wheeler v R [2024] NSWCCA 49
GP v R [2017] NSWCCA 200
Hardey v R [2019] NSWCCA 310
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huang v R [2019] NSWCCA 144
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
TH v R [2025] NSWCCA 121
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment

Parties: Sean Matthews (Applicant)
Crown (Respondent)

Representation: Counsel:
S Kluss (Applicant)
T Abdulhak (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/437280

Publication restriction: N/A

JUDGMENT

1. BALL JA: I agree with Sweeney J.

2. N ADAMS J: I agree with Sweeney J.

3. SWEENEY J: Sean Matthews, the applicant, seeks leave to appeal against the aggregate sentence imposed upon him by her Honour Judge Culver in the District Court on 21 March 2025.

4. The sentence was for two offences to which Mr Matthews had pleaded guilty in the Local Court. All the offences before the court occurred on 2 December 2023. The first offence for sentence was an offence of not stopping and driving a vehicle dangerously, knowing that police officers were in pursuit of the vehicle, contrary to s 51B(1) of the Crimes Act 1900 (NSW) (“Crimes Act*”*), with a maximum penalty of 3 years imprisonment. When Mr Matthews was sentenced for that offence an offence of resisting a police officer in the execution of his duty was taken into account on a Form 1. The sentence indicated for the police pursuit offence with the Form 1 offence taken into account, with a 25% discount for Mr Matthews’ guilty plea, was 18 months imprisonment. The other offence for sentence was assaulting a police officer in the execution of his duty, contrary to s 60(1) of the Crimes Act, with a maximum penalty of 5 years imprisonment. The sentence indicated for that offence, including the 25% discount for the guilty plea, was 18 months imprisonment. The aggregate sentence was 28 months imprisonment, with a non-parole period of 20 months, backdated to commence on 2 December 2024, and thus accumulated by 12 months on Mr Matthews’ balance of parole which he was serving at the time he was sentenced.

5. Mr Matthews was also dealt with for two offences pursuant to s 166 of the C**riminal Procedure Act 1986 (NSW) of, being an unaccompanied learner driver and not displaying L-plates. For both of those matters he was convicted and no other penalty was imposed, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Mr Matthews’ driver’s licence was suspended for a total of 3 years and 3 months for his driving offences.

Grounds of Appeal

6. Mr Matthews sought to rely on three grounds of appeal.

“1. Her Honour erred in failing to find a causal connection between the offending and the mental illness of the applicant.

2. Her Honour erred in the considerations of totality and failed to give effect to her finding of ‘special circumstances’.

3. Her Honour imposed a sentence that was manifestly excessive, and a different sentence is warranted at law.”

7. At the hearing of the appeal counsel did not press Ground 1, accepting that Judge Culver found that Mr Matthews’ mental ill health materially contributed to his offending conduct.

Remarks on Sentence - Facts

8. In her Remarks on Sentence her Honour summarised the agreed facts. She had viewed some Closed Circuit Television (CCTV) footage of part of the event. The Crown invited this Court to view the CCTV footage. Mr Matthews’ counsel did not invite the Court to do so but did not object as that footage was before the sentencing court. I viewed it. It graphically illustrated part of the event and showed that those parts were somewhat understated in the Agreed Statement of Facts. The relevant facts are summarised as follows.

9. Around 8:25PM on Saturday, 2 December 2023 Mr Matthews was driving a grey Audi A4 in Gladesville, alone, although he was the holder of a learner licence. Constable Bellina and Probationary Constable Jeffers were patrolling in a marked police car in uniform. They noticed the grey Audi was weaving between vehicles in light traffic. Because of the manner of driving, Constable Bellina made a U-turn, activated the warning lights and sirens and followed the grey Audi for approximately 500m. The Audi did not stop. Mr Matthews braked harshly and turned left in to a street, with police pursuing him, he turned right on to another street and accelerated sharply, then turned right on to Gladesville Road, at speed, on to the wrong side of the road, into incoming traffic, past a no entry sign. Constable Bellina terminated the pursuit. The total distance of the pursuit was 1.34 km.

10. The Audi hit a parked car on Gladesville Road outside the Hunters Hill Hotel. Constable Bellina stopped the police car behind the Audi. Constable Jeffers got out of the police car and Mr Matthews reversed the Audi, which hit the police car door, and the door made contact with Constable Jeffers’ leg. That was the offence of resisting a police officer. Constable Jeffers approached the Audi and took hold of the driver’s door handle with his taser out. Mr Matthews drove forward and collided with the police car before driving up on to the footpath at speed and hitting a pillar, which, the CCTV footage showed was part of a building. A woman on the footpath moved out of the way to avoid being hit by the Audi.

11. Both police officers approached the Audi. Constable Jeffers had his firearm drawn. Constable Bellina struck Mr Matthews with his baton and pulled him out of the car. He resisted arrest by striking out at police, tensing his arms and legs and moving his body. Police continued to attempt to subdue Mr Matthews. He was held on the ground for a short period of time before three members of the public attempted to assist police with arresting Mr Matthews, who continued to resist by tensing his arms and legs and swinging his body and limbs around.

12. The CCTV footage shows that it took considerable time and effort to subdue Mr Matthews. He continued to resist and strike out at Constable Bellina. Both officers used considerable effort to subdue Mr Matthews but were unable to. Mr Matthews pushed Constable Bellina in the throat with his hand. That was the offence of assaulting a police officer. Constable Bellina fell back on to the ground. Further police officers arrived and Mr Matthews was handcuffed. Constable Bellina was struggling to breathe, was lightheaded and was unable to stand. He vomited while waiting for medical assistance.

13. Both officers were taken to hospital. Constable Bellina was observed to have left arm weakness, slower and slightly slurred speech, and red marks on the left side of his neck. Constable Jeffers had ankle and knee tenderness and redness on his knee. Both officers were prescribed pain relief medication. Actual bodily harm was not an element of the assault offence.

Objective seriousness

14. Her Honour assessed the objective seriousness of the police pursuit as in or “towards” the mid-range, taking into account the driving from the time the police commenced their pursuit until Mr Matthews stopped driving by crashing into the pillar, not a lengthy journey but driving erratically and unsafely, despite warnings to stop, with light traffic and pedestrians present, and that it was prior erratic driving which brought him to police attention.

15. In assessing the offence of assaulting Constable Bellina as “towards the mid-range”, her Honour took into account that it was an actual physical assault, forceful, to a vulnerable part of the body, the impact of which affected the officer for some time.

16. Her Honour found that both offences were committed without regard to public safety.

Mr Matthews’ mental health

17. Her Honour found there was a causal connection between Mr Matthews’ mental ill health and his offending.

18. He was diagnosed by a psychiatrist, Dr Bench, with Antisocial Personality Disorder, Post-Traumatic Stress Disorder, Stimulant Use Disorder in enforced remission and Schizophrenia. His longstanding mental ill health involved a persistent delusional persecutory belief that he was being unfairly targeted by police, which predated these offences.

19. Her Honour took into account Mr Matthews’ mental health to reduce the objective gravity of both offences. Her Honour found that Mr Matthews’ mental ill health, combined with his drug abuse and entry into the criminal justice system from a young age, likely disrupted his development and maturation, and therefore reduced his moral culpability.

20. Her Honour did not find that Mr Matthews’ substance abuse underpinned these offences, but found his drug use exacerbated his mental health conditions.

21. Her Honour found that Mr Matthews’ mental health made his experience of custody more onerous, although his mental health caused him to be the protagonist in incidents in custody sometimes. Her Honour reduced the emphasis to be given to general deterrence and specific deterrence because of Mr Matthews’ mental health. Her Honour found that Mr Matthews presented as a risk to the community because of his mental health, and that protection of the community required emphasis in sentencing him.

Mr Matthews’ subjective circumstances

22. Her Honour took into account a report by Mr Matthews to Dr Bench of a serious traumatic experience in his childhood or adolescence, not further described, which her Honour found enlivened the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and reduced his moral culpability.

23. Mr Matthews was 35 when he was sentenced. He was receiving a disability support pension and had NDIS support at the time of the offences. He has his mother’s support.

24. His record of previous convictions was found to raise the principles in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

25. He was on parole when he committed these offences, for an offence of attempting to cause grievous bodily harm with intent to cause grievous bodily to a police officer. I will address that offence and the sentence for it more fully in connection with consideration of appeal ground 2.

26. Her Honour noted from reports that Mr Matthews’ response to supervision while on parole had been gradually declining during 2023, although accepted that he had a period of stability on parole between April and September 2023. His parole for the prior offence was revoked because of these offences.

27. Her Honour found that Mr Matthews’ remorse was limited, although recognised that that was affected by his mental health, which limited his ability to see how serious his offending was.

28. Her Honour found that Mr Matthews’ capacity to rehabilitate himself required intensive support and strict compliance by him with the available supports.

29. Her Honour found that Mr Matthews was at risk of institutionalisation.

Ground 2: Her Honour erred in the considerations of totality and failed to give effect to her finding of ‘special circumstances’.

Ground 3: Her Honour imposed a sentence that was manifestly excessive, and a different sentence is warranted at law.

30. In respect of “totality” her Honour stated that she took into account that she was sentencing Mr Matthews for a number of offences, that one offence had an offence on a Form 1 to be taken into account, and that he was serving the balance of parole for an offence of attempting to cause grievous bodily harm with intent to do so, which occurred on 12 July 2018, with an assault of a Corrective Services officer on a Form 1. He was sentenced by Judge Bennett on 2 July 2019. The principal offence involved Mr Matthews approaching a police officer, not known to him, who was in uniform standing outside the police station at which he worked, and swinging at the officer’s head and neck three times with a 30 cm knife. The knife did not connect with the police officer, who reflexively blocked it. Judge Bennett sentenced Mr Matthews to 7 years and 6 months imprisonment, with a non-parole period of 4 years and 6 months, commencing on 12 July 2018, the non-parole period to expire on 11 January 2023. The sentence will expire on 11 January 2026.

31. Mr Matthews’ parole was revoked from 2 December 2023, the date of the offences for sentence.

32. Her Honour stated that the sentence must take into account the overall criminality of the offences for sentence, then consider when the sentence should be fixed with reference to the sentence Mr Matthews was serving, and must ensure the sentence was not “unduly crushing”.

33. Her Honour stated that she made a “modest” finding of special circumstances by Mr Matthews’ experience of custody being more onerous and his risk of institutionalisation. However, her Honour stated:

“… with respect to the total period the offender will be in custody since his revocation of parole, I expressly note and intend that the ratio will be disturbed such that the overall time the offender will be in custody from the revocation of his parole will exceed 75% of that total period. I do so noting the protection of the community, but also noting that the Court cannot allow disproportion in the application of totality to come to bear when the Court imposes the current sentence. It is expressly done and intended by the Court.”

34. Her Honour backdated the commencement of the sentence to 2 December 2024 “in light of the offender’s time in custody and noting his current sentence with the application of the principles of totality”. Thus the sentence her Honour imposed was accumulated by 1 year on the balance of parole Mr Matthews had begun serving on 2 December 2023.

The applicant’s submissions

35. Mr Matthews’ counsel’s submissions addressed Grounds 2 and 3 of his appeal together. Counsel acknowledged that she could not point to any particular error in the sentencing judge’s application of the totality principle which fell within House v The King (1936) 55 CLR 499; [1936] HCA 40.

36. Counsel submitted that by her Honour accumulating the sentence imposed on the balance of parole of the previous sentence by 12 months, the ratio of the effective non-parole period to the total effective sentence is 80%, and the period of 8 months on parole is insufficient, particularly given Mr Matthews’ long-standing mental illness issues and institutionalisation. Counsel submitted that a longer period on parole under supervision would better serve community protection, with which her Honour was concerned.

37. Counsel submitted that each of the indicative sentences was at the top of the range of sentences reflected in the sentencing statistics maintained by the Judicial Commission, and that both offences could have been dealt with in the Local Court, and their objective circumstances did not warrant their being dealt with in the District Court.

38. Counsel submitted that the degree of accumulation between the previous sentence and the sentence imposed made the total sentence manifestly excessive and disproportionate to the totality of the offending, so that the sentence is crushing.

The Crown’s submissions

39. The Crown’s submissions focused on Mr Matthews’ mental illness, its interrelationship with his long-standing drug addiction and the concerns about community safety to which those factors gave rise. Mr Matthews’ medical records which were in evidence, on which the Crown addressed the Court, show a history of him lacking insight into his mental illness, being resistant to treatment and refusing to take medication, acting impulsively and aggressively when not treated and continuing to use methamphetamine type drugs.

Consideration

40. As noted above at paragraph [33] her Honour specifically explained her intention that the overall non-parole period would exceed 75% of the total effective sentence and the reasons for that decision, it being preferable for a sentencing judge to expressly say why the overall non-parole period exceeded the 75% statutory ratio, though it is not an error to exceed the ratio: GP v R [2017] NSWCCA 200; Hardey v R [2019] NSWCCA 310; Huang v R [2019] NSWCCA 144; Edquist-Wheeler v R [2024] NSWCCA 49 at [51]-[63].

41. Although Judge Culver referred to Mr Matthews’ record of prior convictions, she did not do so in detail. An examination of Mr Matthews’ prior record shows that in addition to the offence in 2018 for which he was sentenced by Judge Bennett and on parole, his record as an adult included prior offences of assault occasioning actual bodily harm, affray, assault, and armed robbery. Of course, having regard to a person’s prior record and the need for protection of the community to be afforded weight in sentencing, does not permit a sentence imposed to be more severe than is appropriate for the offences for sentence.

42. The applicant must establish that the sentence imposed upon him was unreasonable or plainly unjust: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 and the cases cited therein at [443].

43. In TH v R [2025] NSWCCA 121 Bell CJ, Garling J agreeing, said:

“[4] Mere disagreement by appellate judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive (or manifestly inadequate). The significant degree of latitude afforded to sentencing judges when reviewing sentences for manifest excess or manifest inadequacy reflects the fact that sentencing is a discretionary exercise in which there is no one correct sentence and that, within a range of acceptability, the judgment of a sentencing judge as to an appropriate sentence should be respected: R v White [2025] NSWCCA 111 at [20]-[28].

[5] As noted in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)], an applicant seeking to challenge a sentence on the ground of manifest excess has a ‘very heavy practical burden’, and must show a kind of disproportion which is so ‘manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law’, citing R v Elemes [2000] NSWCCA 235 at [22]-[23].”

44. When a court sentences a person for more than one offence or sentences a person serving an existing sentence, the overall sentence must be just and appropriate to the totality of the offending behaviour: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.

45. Counsel for Mr Matthews conceded that no specific error could be identified by the sentencing judge in her application of the principle of totality to the sentence. She placed emphasis on Mr Matthews’ history of mental illness as making it desirable for him to be released into the community under supervision for an extended period of time, which indicated that a longer parole period would be appropriate. However, when one considers the circumstances of the offences for sentence, the maximum penalties prescribed for them, that Mr Matthews was on parole for a serious offence against a police officer at the time of their commission, the attitude he has taken in the past to the treatment of his mental illness, his related history of drug abuse, and his prior violent offending, Mr Matthews has not demonstrated that the sentence imposed on him, or the total effective sentence by reason of its being accumulated on his balance of parole, is disproportionate to his total offending, unreasonable or plainly unjust. I would grant leave to appeal, but dismiss the appeal.

Orders

46. The orders I propose are:

47. Grant leave to appeal.

48. Dismiss the appeal.

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