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R v Matthews[2022] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:

R v Matthews [2022] QCA 125

PARTIES:

R

v

MATTHEWS, Jacob Daniel

(applicant)

FILE NO/S:

CA No 143 of 2021

DC No 251 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 15 June 2021 (Cash QC DCJ)

DELIVERED ON:

15 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Date of Orders: 21 September 2021

Date of Publication of Reasons: 15 July 2022

JUDGES:

Fraser and McMurdo and Mullins JJA

ORDERS:

Date of Orders: 21 September 2021

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. Set aside the orders made in the District Court at Maroochydore on 15 June 2021.
  4. The applicant be resentenced to the following:
  1. (a)
    Count 3 a term of 2 years 3 months imprisonment.
  2. (b)
    Count 5 a term of 3 months imprisonment.
  3. (c)
    Convicted not further punished for Counts 1, 4, 6, 7.
  1. Find that the applicant committed an offence punishable by imprisonment during the operational period of the suspended sentences imposed by Chief Judge O'Brien on 21 March 2016. Order that it is not unjust to order that the applicant serve the whole of the suspended terms of imprisonment. The period that remains to be served is 2 years less 87 days of presentence custody (25 March 2015 to 19 June 2015).
  2. Find that the applicant committed an offence punishable by imprisonment during the further extended operational period of 12 months ordered by Chief Judge O'Brien on 31 March 2016 in respect of the suspended terms originally imposed by Judge Clare QC on 4 November 2013, namely, 18 months less 3 days of presentence custody served between 11 and 14 January 2013.
  3. All terms of imprisonment be served concurrently.
  4. In respect of the presentence custody of 644 days, namely 202 days between 25 January 2017 and 15 August 2017, 302 days between 16 August 2017 and 13 June 2018, 1 day between 3 May 2021 and 3 May 2021, 31 days between 4 May 2021 and 3 June 2021, 10 days between 4 June 2021 and 14 June 2021, and 98 days between 15 June 2021 and 20 September 2021, declare that no time is taken to be imprisonment served under the sentences.
  5. Fix today, 21 September 2021 as the date the applicant be released to parole.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty in the District Court to six property offences – where on what the sentencing judge considered perhaps to be the most serious offence a sentence of three and a half years imprisonment was imposed to reflect the total criminality in all of the offending – where lesser, concurrent terms of imprisonment were imposed on the remaining counts – where the sentencing judge declared that a total period of 313 days of pre-sentence custody was deemed time already served under the sentence – where the sentencing judge fixed 4 February 2022 as the parole eligibility date – where counsel for the respondent acknowledged that there had been a specific error in the exercise of the sentencing discretion which required this Court to resentence afresh – where the acknowledged error, which resulted from the same error in submissions made to the sentencing judge for both parties, was a failure to properly take into account time served in pre-sentence custody – where, accordingly, the Court accepted the submissions for both parties that the sentencing judge erred in finding that only 313 days of pre-sentence custody could be declared time already served under the sentence, with the consequence that the Court was required to reconsider the sentencing discretion afresh – whether the sentence was manifestly excessive

R v Berns [2020] QCA 36, cited

R v Vaughan [2005] QCA 348, cited

COUNSEL:

J B Godbolt for the applicant

D Nardone for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  On 15 June 2021 the applicant pleaded guilty in the District Court to six property offences committed between 6 and 19 September 2016.  For what the sentencing judge considered perhaps to be the most serious offence, count 3, a sentence of three and a half years imprisonment was imposed to reflect the total criminality in all of the offending.  Lesser, concurrent terms of imprisonment were imposed on the remaining counts.  The unserved period (about one year and nine months) of a sentence of two years imprisonment, suspended after 87 days served in pre-sentence custody, which was imposed on 31 March 2016 was ordered to be served concurrently.  The sentencing judge declared that a total period of 313 days of pre-sentence custody was deemed time already served under the sentence.  The sentencing judge fixed 4 February 2022 as the parole eligibility date.
  2. [2]
    At the hearing of the applicant’s application for leave to appeal against sentence on 21 September 2021, the Court granted leave to appeal, allowed the appeal, set aside the orders made in the District Court, and made the following orders instead:
  1. “4.The applicant be resentenced to the following:
  1. (a)
    Count 3 a term of 2 years 3 months imprisonment.
  2. (b)
    Count 5 a term of 3 months imprisonment.
  3. (c)
    Convicted not further punished for Counts 1, 4, 6 and 7.
  1. 5.Find that the applicant committed an offence punishable by imprisonment during the operational period of the suspended sentences imposed by Chief Judge O'Brien on 21 March 2016.  Order that it is not unjust to order that the applicant serve the whole of the suspended terms of imprisonment.  The period that remains to be served is 2 years less 87 days of presentence custody (25 March 2015 to 19 June 2015).
  1. 6.Find that the applicant committed an offence punishable by imprisonment during the further extended operational period of 12 months ordered by Chief Judge O'Brien on 31 March 2016 in respect of the suspended terms originally imposed by Judge Clare QC on 4 November 2013, namely, 18 months less 3 days of presentence custody served between 11 and 14 January 2013.
  1. 7.All terms of imprisonment be served concurrently.
  1. 8.In respect of the presentence custody of 644 days, namely 202 days between 25 January 2017 and 15 August 2017, 302 days between 16 August 2017 and 13 June 2018, 1 day between 3 May 2021 and 3 May 2021, 31 days 4 May 2021 and 3 June 2021, 10 days between 4 June 2021 and 14 June 2021, and 98 days between 15 June 2021 and 20 September 2021, declare that no time is taken to be imprisonment served under the sentences.
  1. 9.Fix today, 21 September 2021 as the date the applicant to be released to parole.”
  1. [3]
    These are my reasons for participating in those orders.
  2. [4]
    In relation to count 1, receiving stolen property, on 18 September 2016, a motor scooter that had been stolen from the complainant’s home was found in the backyard of a home the applicant frequented.  The scooter was returned to the complainant but his insurance company inspected the vehicle and concluded that it was a write-off from damage.  In relation to count 3, unlawful use of a motor vehicle, a sedan with a custom made trailer worth about $14,900.00 and containing equipment of the approximate value of $48,100.00 was taken from a home near the home of the applicant.  The vehicle was subsequently found with stolen licence plates affixed to it.  The trailer and its equipment were not located.  The value of the trailer, equipment, and the cost of towing expenses, amounted to nearly $24,000.00.  In relation to count 4, enter premises and steal, upon a search of the applicant police found various items belonging to the complainant, including documents and a wheel nut socket tool.  In relation to count 5, break enter and steal, the applicant smashed a front glass door of the complainant’s home, stole jewellery items and a Swiss pocket knife, and ransacked the home.  A nearby resident, who had seen the applicant hiding in a bush until a taxi attended, found a mobile phone there.  When the applicant returned to search for the mobile phone, the owner of the home where the phone was found asked him what he was doing.  The applicant accused her of having his mobile phone.  The police subsequently were given the mobile phone and were able to trace the taxis used by the applicant.  Some of the jewellery items were returned to the complainant but some were not located.  They were of significant sentimental value.  The complainants were required to pay $1,000.00 excess to their insurance company.  In relation to count 6, enter premises and steal, during the night the applicant entered the complainant’s car and stole from the glovebox her purse, which contained personal cards.  Police found the complainant’s purse with identification cards in a bag of the applicant’s and they found a number of other cards belonging to the complainant in a bin at his home.  In relation to count 7, receiving tainted property, upon searching the applicant police found keys belonging to the complainant which she had noticed were missing earlier that day.
  3. [5]
    The applicant was 36 when he committed the subject offences.  He was 41 at the time of sentence.  He had a very extensive criminal history.  He had been imprisoned on a great many occasions, mostly for property related offences.  He was on parole at the time of the subject offences and also the subject of suspended sentences of imprisonment.  The offending seems clearly to have been attributable to the applicant’s longstanding drug addiction, which itself appears to have been the product of the applicant’s shockingly prejudiced youth.
  4. [6]
    The sentencing judge took into account in favour of the applicant his pleas of guilty, after referring to some delay in entering the pleas which the sentencing judge thought might not make a great deal of difference.  The sentencing judge also noted that the offences occurred over about a week in September 2016, which was quite some time earlier.  The applicant had spent most of his adult life in prison.  Since 2016, when the two year sentence suspended after 87 days was imposed, the applicant had been in jail for all but about two years.  He suffered from complex post-traumatic stress disorder and a borderline personality disorder.  The sentencing judge accepted that the applicant had taken steps towards rehabilitation and made efforts to put things in place for his release, but took into account also what the applicant’s past history told about his prospects of future rehabilitation.  The sentencing judge considered it obviously desirable that the applicant’s return to the community be structured and supported and occur at a time determined by the parole authorities to be appropriate.  The sentencing judge considered that, objectively, the offences, when considered in the context of the applicant’s background and criminal history in other matters, might deserve a sentence approaching four years imprisonment.  Taking into account the best part of two years left to be served under the sentence imposed on 31 March 2016, the overall period of imprisonment would be something like four and half to five years.  Other considerations aside, such a sentence might see the applicant released on parole after 18 or 20 months.  Giving credit for the applicant’s pleas of guilty and to account for eight months in custody that was not strictly referable to the subject proceedings, the sentencing judge reduced the otherwise appropriate head sentence to three and a half years.
  5. [7]
    The sentencing judge took into account other mitigating factors, including the applicant’s disadvantaged background and the fact that he had taken steps towards rehabilitation, and found that the applicant should spend 18 months in custody before eligibility for parole.  That period would be a bit more than a third of the sentence to be imposed but less than half the period of imprisonment.
  6. [8]
    In addition to the period of eight months of pre-sentence custody to which the sentencing judge referred, the sentencing judge was informed by both counsel that there was 313 days of pre-sentence custody directly attributable to the proceedings or closely connected with them, which the sentencing judge declared as time already served.
  7. [9]
    Counsel for the respondent acknowledged that there had been a specific error in the exercise of the sentencing discretion which required this Court to resentence afresh.  The acknowledged error, which resulted from the same error in submissions made to the sentencing judge for both parties, was a failure to properly take into account time served in pre-sentence custody.  Because there is no issue about the error it is sufficient here to restate a submission made for the respondent, which was accepted as accurate by the applicant, about the pre-custody periods served by the applicant, some of which were declarable and some of which were not declarable pursuant to s 159A of the Penalties and Sentences Act 1992 (“PSA”):
    1. (i)
      18 September 2016 to 24 January 2017 – serving the suspended sentence of 16 months activated on 31 March 2016, parole having been suspended.  This is a total of 128 days or four months and six days.  This period is not declarable as time served pursuant to s 159A of the PSA, as the applicant was not also held on remand.  That time may, however, be considered relevant to the exercise of the sentencing discretion in the way described in R v Berns [2020] QCA 36.
    2. (ii)
      25 January 2017 to 15 August 2017 – serving the suspended sentence of 16 months activated on 31 March 2016 as well as being held on remand for the offences the subject of the sentence.  This is a total of 202 days or six months and 21 days.  This period is declarable as time served pursuant to s 159A of the PSA.
    3. (iii)
      16 August 2017 to 13 June 2018 (at which time bail was granted) – on remand only for the offences the subject of the sentence.  This is a total of 302 days or nine months and 29 days.  This period is declarable as time served pursuant to s 159A of the PSA.
    4. (iv)
      3 May 2021 – This one day was spent on remand only for the offences the subject of the sentence.
    5. (v)
      4 May 2021 to 3 June 2021 – serving one month of the 3-month sentence imposed in the Redcliffe Magistrates Court on 4 May 2021 as well as being held on remand for the offences the subject of the sentence.  This is a total of 31 days or one month.  This period is declarable as time served pursuant to s 159A of the PSA.
    6. (vi)
      4 June 2012 to 14 June 2021 – on remand only for the offences the subject of the sentence. This is a total of 10 days and is declarable as time served pursuant to s 159A of the PSA.
  8. [10]
    As was also submitted for the respondent:
    1. (a)
      The total declarable pre-sentence custody is 546 days, or one year, five months and 29 days (the sum of (ii) to (vi) above).  Of that 546 days, 313 (10 months and nine days) is referable to time served in pre-sentence custody on remand only and the remaining 233 days (seven months and 20 days) is referable to time served in pre-sentence custody on remand and serving a sentence.
    2. (b)
      There was a further period of custody that required consideration. Between 22 May 2020 and 3 February 2021, the applicant was held on remand only for four offences against the Bail Act.  That period amounts to 258 days or eight months and 14 days.  It was accepted by both the prosecutor and defence counsel that when, on 4 February 2021, the Maroochydore Magistrates Court came to sentence the applicant for the four breach of bail offences the 258 days was not declared because it was “believed at the time it would then somehow be” taken into account at the sentence for the subject offences.  In those agreed circumstances it is accepted that the 258 days ought to be taken into account in resentencing.
  9. [11]
    Accordingly, the Court accepted the submissions for both parties that the sentencing judge erred in finding that only 313 days of pre-sentence custody could be declared time already served under the sentence, with the consequence that the Court was required to reconsider the sentencing discretion afresh.  With reference to R v Vaughan[1], the respondent submitted that, consistently with the sentencing judge’s view, four years imprisonment could well be a starting point for the subject offences.
  10. [12]
    Given that the first of two suspended sentences to which the applicant was subject had been breached on more than one earlier occasion and the additional property offences were not trivial, it was appropriate to activate the whole of the remaining term of two years less 87 days of pre-sentence custody and the whole of an 18 month suspended term of imprisonment.  (That suspended term was imposed on 4 November 2013 and its operational period was extended for a further period of 12 months on 31 March 2016).  The sentence for the subject offences should be imposed cumulatively upon the activated suspended sentences (which should be ordered to be served concurrently with each other), but it was necessary to make allowance for the impact of cumulative orders.  The respondent submitted that in these circumstances the appropriate notional head sentence the would be up to about five years and nine months.  Taking into account, in the way described in R v Berns, the period of four months and six days mentioned in [9](i) above, and further moderating the sentence to take into account the 258 days (eight months and 14 days) mentioned in [10](b) above, the appropriate head sentence would be about four years imprisonment.  Upon that approach, as the respondent submitted, it then would be appropriate to declare as pre-sentence custody served by the applicant under the sentence the total period of 546 days or 17 months and 29 days.
  11. [13]
    The sum of that declarable pre-sentence custody and the 98 days the applicant had spent serving his sentence between the date of sentence and the date of the hearing of the application for leave to appeal amounted to to 644 days (21 months and five days) of the putative four year head sentence.  With that in mind, it was submitted for the respondent that the Court might consider it appropriate to fix a parole eligibility date as at the date of the hearing of the application for leave to appeal.  After hearing argument upon that point, the Court accepted the submission for the applicant that, having regard to the length of time the applicant had spent in custody, he should have the benefit of certainty of release on the day of the hearing of the application for leave to appeal.  That could be achieved by imposing a term of four years imprisonment, ordering immediate suspension of that term, and declaring the whole of the 546 days as time served under the sentence, but such a sentence structure would not achieve the very desirable result of the applicant being supervised whilst in the community.  The Court therefore adopted the alternative sentence structure in the sentence set out in [2] of these reasons under which, instead of the whole of the relevant pre-sentence custody being declared to be time served, the term of imprisonment is reduced and there is correspondingly a declaration that no time is taken to be imprisonment served under the sentences.
  12. [14]
    The head sentence imposed by the Court of two years and three months imprisonment therefore should be understood in the context that a great deal of pre-sentence custody which otherwise would have been deemed to be time served under the sentence was instead deducted from what otherwise would have been the appropriate term of imprisonment.
  13. [15]
    McMURDO JA:  For the reasons given by Fraser JA, I joined in the orders which were made on 21 September 2021
  14. [16]
    MULLINS JA:  For the reasons given by Fraser JA, I joined in making the orders on 21 September 2021.

Footnotes

[1] [2005] QCA 348.

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Editorial Notes

  • Published Case Name:

    R v Matthews

  • Shortened Case Name:

    R v Matthews

  • MNC:

    [2022] QCA 125

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Mullins JA

  • Date:

    15 Jul 2022

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QDCSR 37815 Jun 2021-
Notice of Appeal FiledFile Number: CA143/2117 Jun 2021-
Appeal Determined (QCA)[2022] QCA 12515 Jul 2022-

Appeal Status

Appeal Determined (QCA)

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