New South Wales Court of Criminal Appeal CITATION: R v Matthews [2008] NSWCCA 54 HEARING DATE(S): 4 March 2008 JUDGMENT DATE: 10 March 2008 JUDGMENT OF: Mason P at 1; Mathews AJA at 2; Latham J at 3 DECISION: 1. The sentence imposed by Moore ADCJ on 9 October 2007 is set aside. 2. The matter is remitted to the District Court for expedited determination afresh by a different judge. CATCHWORDS: SENTENCE - Crown appeal - Break, enter and commit serious indictable offence in company - resondent traverses his plea during cross-examination - Judge proceeds to sentence on erroneous basis - sentence set aside and matter remitted to District Court for re-determination - observations re manifest inadequacy of sentence imposed. LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912 R v Sharah (1992) 30 NSWLR 292 Tangye (1997) 92 A Crim R 545 CASES CITED : Taufahema v The Queen [2006] NSWCCA 152 ; (2006) 162 A Crim R 152 R v Falls [2004] NSWCCA 335 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Seltsam Pty Ltd. v Ghaleb [2005] NSWCA 208 PARTIES: Applicant - Regina Respondent - Shaun Harvey Matthews FILE NUMBER(S): CCA 2007/00004695 COUNSEL: Applicant - N Norman Respondent - A Francis SOLICITORS: Applicant - S Kavanagh Respondent - SE O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/31/0006 LOWER COURT JUDICIAL OFFICER: Moore ADCJ LOWER COURT DATE OF DECISION: 9 October 2007 IN THE COURT OF CRIMINAL APPEAL 2007/00004695 MASON P MATHEWS AJA LATHAM J 10 MARCH 2008 R v SHAUN HARVEY MATTHEWS Judgment 1 MASON P : I agree with Latham J. 2 MATHEWS AJA : I agree with Latham J. 3 LATHAM J : This matter came before the Court as a Crown appeal against the inadequacy of a sentence imposed upon the respondent by Moore ADCJ (the Judge) on 9 October 2007, with respect to a count of Aggravated Break Enter and Commit a Serious Indictable Offence, namely Armed Robbery, under s 112(2) of the Crimes Act 1900. The circumstance of aggravation relied upon was that the respondent was in the company of other persons. The offence may be briefly described as a "home invasion". It carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years. 4 The respondent was sentenced to a non-parole period of 18 months, to date from 22 April 2007, expiring 21 October 2008, with a balance of term of 2 years and 3 months, expiring on 21 January 2011. 5 I am of the view that the Court cannot dispose of the appeal and that the matter must be remitted to the District Court under s 12(2) of the Criminal Appeal Act 1912, on the basis that the evidence given by the respondent at the sentence hearing, and the acceptance of that evidence by the Judge, does not support the respondent's conviction. Notwithstanding the fact that the Crown appeal cannot be finally determined, it is appropriate to indicate that the sentence was manifestly inadequate, and to give some brief reasons for that conclusion. The Background to the Respondent's Plea of Guilty. 6 Following his arrest on 22 August 2006, the respondent was charged with an offence under s 112(3), that is, the specially aggravated form of the offence, on the basis that it was the respondent, or a co-offender who, with the respondent's knowledge, brandished a dangerous weapon when the four men robbed the victims after breaking into the premises. That charge was withdrawn (according to the Crown, on the basis that the firearm was not recovered and the Crown could not prove that it was a dangerous weapon) and the respondent was committed for trial on 17 January 2007 on the current charge. 7 The respondent pleaded guilty on 22 February 2007 to an indictment in the following terms :- On 21 June 2006 at M***** in the State of NSW did break and enter a dwelling house situate at 9 W****** street, and did commit a serious indictable offence therein, namely, whilst armed with an offensive weapon he did rob DB of a sum of monies, in circumstances of aggravation, namely, that Shaun Harvey Matthews was in company with other persons. 8 The plea of guilty came after the Crown agreed to a statement of facts that omitted any reference to the respondent as the offender who carried the firearm into the premises. The statement of facts tendered by the Crown described the offence thus :- On Wednesday 21 June 2006, the victims, DB and SB, were at their home with their 18-month-old son. SB was then six months pregnant. At about 1:45 that morning, DB was woken from sleep by a loud knocking at the front door of his home. He got up and went out to see who it was. Looking through the glass panels of the front door, DB could see that the front sensor light had been activated, and there were four men standing on the front veranda of the house. DB asked who the men were. The offender replied "It's Adam". He then said "Let me in, I want to talk to you". DB did not know the men. He could see that some of the men had their faces disguised and all had socks on their hands. He became afraid. DB retrieved an extendable baton that he was authorised to possess as part of his work duties. He then returned to the front door. The men were still on the veranda, and DB told them to go away. One of the men began to kick the front door until the glass panels collapsed. DB began striking out at the intruders with his baton, although he could not determine if he hit any of the men. DB saw one of the offenders pass a firearm to another of the men. One of the offenders then reached in and unlocked and then opened the front door. All four men then entered the house. DB could clearly see the gun that the offenders were using. He saw that it was a handgun, being metallic with a black matt finish. It appeared to be a semi automatic, as he saw the slide of the gun being pulled back, which in his understanding cocked the gun. The slide of the gun then stayed locked at the back of the gun. Still in her bedroom, SB could hear the disturbance and was terrified for herself and her family. She telephoned the 000 emergency service and asked for police. As she was being transferred to the police operator, one of the intruders came into the bedroom and grabbed the telephone from her hand, terminating the call as he did so. The couple's 18-month-old son was with his mother and he began to cry. He was distressed and frightened, as was SB. In the main living area, the intruders forcibly removed the baton from DB and one of the offenders began to hit him in the face with the gun, causing a cut and bruising to his face. The intruders demanded money. DB had some cash in the house that the family had been putting aside to pay for the registration and insurance of their two cars which was due to be paid that week. This was an amount of $2500. There was also another relatively small amount of money, approximately $150 in the house. This was largely made up of coins that DB and SB were in the habit of setting aside to be banked to their son's bank account. The coins were kept in small bags in readiness for banking. The intruders took all of the money. They also took an engraved gold watch and two mobile phones. After gathering the property, one of the offenders struck DB two more times to the head area. The men then left. 9 It is clear, by virtue of the fact that both victims selected the photograph of the respondent as one of the intruders, that the respondent was not one of the disguised men on the night of the offence. He was, however, wearing socks on his hands and identified himself as "Adam" to the male victim. The statement of SB and the evidence of the respondent on sentence established that the respondent was the man who entered the bedroom and prevented SB from calling the police. 10 It is equally clear that the respondent's plea of guilty amounted to an admission of the essential ingredients of the offence as framed in the indictment. To be blunt, the respondent by his plea admitted the offence of armed robbery. Either the respondent was admitting that he was armed (that is, he had the weapon in his possession), or that he was a party to a joint criminal enterprise to commit armed robbery. The latter basis brought with it an admission that he knew one of his co-offenders was armed with a weapon when they confronted the victims : see R v Sharah (1992) 30 NSWLR 292 at 298A. 11 Contrary to submissions made by the respondent's counsel and by the Crown in this Court that suggested otherwise, this was never a case of common purpose, in the sense that the armed robbery was somehow incidental to an agreement to commit another crime, the armed robbery being within the contemplation of the respondent as a possible incidence in the execution of the agreed joint criminal enterprise ; see Tangye (1997) 92 A Crim R 545. Even had that been the case, the respondent could not have contemplated an armed robbery as a possibility unless he knew that a co-offender was carrying a firearm ; see Taufahema v The Queen [2006] NSWCCA 152 ; (2006) 162 A Crim R 152. 12 When the matter first came before the Judge on 13 June 2007 the Crown tendered a number of documents and closed its case. The respondent then gave evidence of his subjective circumstances, including his brief educational history, his descent into drug abuse at an early age and his periods of incarceration, beginning as a juvenile and extending almost unbroken to the present time. To the extent that the respondent's evidence canvassed the circumstances of the offence, the respondent said that he met his co-offenders for the first time on the night of the offence at a party "where a lot of people were using drugs". Someone had suggested that they obtain more drugs, so they went to the victims' home, either to rob them of drugs and/or money to buy drugs. The respondent agreed that he had read the facts that had been tendered by the Crown and that he had done so before the plea of guilty. The matter was adjourned to 5 October 2007 to allow for the preparation of reports in support of the respondent's case on sentence. 13 On 5 October, a psychologist's report was admitted as Exhibit 1. That report contained the statement that the respondent "confirmed his guilty plea, agreeing with the facts as stated." The respondent was then cross-examined by the Crown at some length. In the course of that cross-examination, the following question and answer appear :- Q. Just dealing with the offence .. now, you say when you went to the house you didn't know your mates had a gun? A That's right. It should be observed that there was no evidence given by the respondent, nor any material in any of the reports that were tendered, to suggest that the respondent had previously made this assertion. The cross-examination continued :- Q. So when did you become aware there was a gun? A . I didn't at any point . Q. I put it to you that that's just not true; that you would have become aware, if you weren't already aware when … A There was no evidence suggesting that there was even a gun there at the time. Q. Well, you've seen the facts that are before the court, have you? A. My charges were dropped from that, if you really want to argue the point about it. Q. Well, I don't want to argue the point about it. If I could just refer you to what's in the facts. The victim, the man whose house you and your mates broke into, after the front door had been kicked in and the glass panels had collapsed, do you remember him striking you and your group with his extendable baton? A Yeah. Q. Remember that? He saw one of the group pass a firearm to another when you all entered the house. Are you saying you didn't see the gun? A . I didn't see a gun. Q. And you're saying today that you've never been aware of any gun, other than when you read about it in the initial charge? A. That's right. 14 The emphasised passages in this exchange leave no room for doubt. The respondent maintained that he had no knowledge of the presence of a gun at any time, until he was charged with the specially aggravated form of the offence. Moreover, it appears from his answers above that he was under the impression that his committal on the lesser charge reflected an abandonment by the prosecution of any reliance upon the presence of a weapon in the course of the offence. If that was the respondent's understanding, it was completely inconsistent with any acknowledgment by him of the statement of facts and with his plea. 15 There was no re-examination on this topic. The only discussion between the Judge and the respondent's legal representative on this subject arose in the context of a discussion about the timing of the plea of guilty. The respondent's representative conceded that the offence could not be described as a low range offence "given the number of people and the existence of the firearm, and that certainly, whilst it wasn't carried by my client, it was certainly there, on the facts that had been agreed." The Crown's representative also made submissions on sentence, but made no reference to the basis upon which the Judge could proceed to sentence in the light of the respondent's evidence. 16 The matter was adjourned to 9 October 2007 for sentence when there was further discussion about the timing of the plea. The respondent's representative confirmed that his discussions with the Crown Prosecutor "related to the use of the firearm, and any suggestion that he had the firearm, was involved in the use of the firearm, was removed from the facts." The Judge revisited the respondent's evidence that he did not see the weapon during the commission of the offence. The respondent's representative noted that the agreed facts did not state which of the offenders had the firearm and that "once that settled, … he was in a position then to enter his plea of guilty." The Judge then remarked, "the evidence about his knowledge of the firearm would have been circumstantial." This last comment suggests that the Judge failed to appreciate that knowledge of the firearm was established by the plea ; it was not an aggravating factor, the existence of which depended upon the drawing of an inference. 17 It is noteworthy that the respondent's representative below at no stage sought to rely upon the respondent's evidence to the effect that he did not know of the existence of the firearm. Rather, it is difficult to avoid the impression that his legal representative would have preferred the respondent had said nothing on this topic. The representative may have expected the Judge to reject the respondent's evidence in that regard. However, that approach ignored the obligation to seek further instructions from the respondent, as to whether he wished to adhere to that evidence and withdraw his plea, or retreat from the evidence. 18 Finally, in the course of his remarks on sentence on 9 October, the Judge said :- Although the indictment reads "armed with an offensive weapon" the facts of the matter as to which the statement was prepared by the Crown prosecutor go to the aggravation as being in company with other persons. The offender has always denied that he knew that there was a weapon involved at the time, but he does not dispute that in fact his co-offender was armed with an offensive weapon. That weapon was a pistol, which was used to assault or to hit [DB] in the course of the robbery but without it being fired. Although that is, one might say 'sailing close to the wind of traversing the plea', I do not regard it as traversing the plea, in view of the way in which the section is expressed, and the way the indictment is expressed, and the way in which the Crown statement of facts stated (sic). ………………………………………………………………………. It has been one of the matters which has engaged my attention principally in this matter, to determine whether or not to accept the evidence of Matthews that he did not see the gun. His evidence about this was very adamant. That of course does not carry the day, but after adjourning the matter and giving it careful consideration, I have come to the view that I do not find it established that he was aware of the gun, of its existence . 19 The emphasised passages further suggest that the Judge laboured under the misapprehension identified at [16] above, namely that the issue with respect to the use of a weapon was relevant to a circumstance of aggravation, rather than at the very heart of the serious indictable offence which was an ingredient of the offence. With respect to the Judge, I cannot fathom how the indictment or the statement of facts provided any assistance in determining that the respondent had not traversed his plea. On the contrary, they demonstrated the very opposite. 20 In short, the Judge proceeded to sentence on the basis of a finding that fundamentally undermined the respondent's plea. This was not merely an attempt by the respondent to minimise his criminality, nor can it be described as a technical traversal of the plea, such as in R v Falls [2004] NSWCCA 335. It is necessary for the proceedings to be remitted to the District Court so that the basis for the plea of guilty can be properly determined, or, failing that, so that the respondent can be given the opportunity to withdraw his plea and have the matter fixed for trial. Accordingly, the sentence should be set aside. 21 The question arises whether this Court should direct that the fresh sentencing proceedings be heard by a different judge. The power to do so may extend to cases where the judicial officer has made credibility-based findings, albeit it should be exercised sparingly and only when it appears to the appellate court that it is appropriate in the interests of justice ; see Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 538, 556 ; Seltsam Pty Ltd. v Ghaleb [2005] NSWCA 208. This is such a case. It is undoubtedly in the interests of justice that the respondent's sentence proceedings take place free from the spectre of pre-judgment. 22 The offence was committed within one month of the respondent's release to parole, with respect to very similar offences. The respondent is now serving the balance of parole, to date from 21 June 2006, expiring 16 July 2008. It is therefore important that there is a speedy resolution of the issues raised by this appeal. Manifest Inadequacy 23 The respondent was 21 years of age at the time of the offence and 22 at the time of sentence. His criminal history begins in April 1999 and consists largely of motor vehicle offences and property offences in the Children's Court, until his first appearance at the Newcastle District Court in August 2003. By that stage, the respondent had already been convicted of two robbery offences, one robbery in company offence, and no fewer than 20 break enter and steal offences. In addition, the respondent was sentenced at the Worimi Children's Court in May 2003 for an aggravated break and enter and commit serious indictable offence. 24 The respondent spent most of the time between the ages of 14 and 22 subject to control orders in juvenile institutions. A number of periods of supervision and attempts at programs aimed at drug rehabilitation proved unsuccessful in restraining the respondent from further offending. 25 On 12 August 2003 the respondent was sentenced in the Newcastle District Court for a robbery in company offence and an aggravated break enter and commit serious indictable offence in company. Those offences were committed within one week of the respondent's release to parole from a control order. An aggregate sentence of 5 years was imposed, with an aggregate non-parole period of 3 years. The respondent was again released to parole on 16 May 2006. Steps were taken to revoke the respondent's parole prior to his arrest for the current offence, owing to his failure to abide by a direction that he undertake drug counselling and maintain contact with the probation and parole service. 26 Notwithstanding the respondent's relative youth, the evidence of remorse expressed to the psychologist, Ms Freeman, and to the court in his evidence, the respondent's insistence that he now wishes to undergo rehabilitation and address his substance abuse issues, and the fact that the sentence imposed by the Judge represented the first period of incarceration in an adult gaol, a non-parole period of 18 months with a balance of term of 2 years and 3 months was entirely inadequate to reflect the criminality inherent in the offence. 27 For my part, I do not understand how the Judge could have characterised the offence as below midrange in objective gravity. There were a significant number of aggravating factors, not the least of which was the commission of the offence whilst on conditional liberty. The degree of planning, the fact that a married couple and their infant child were terrorised within the privacy of their own home in the middle of the night, when the respondent was taken to have known that there were persons inside the house, the use of disguises, and the infliction of actual violence all combined to elevate the objective criminality of the offence above the midrange. Whilst the plea of guilty was a factor that entitled the Judge to decline to apply the standard non-parole period, the imposition of an 18 month non-parole period demonstrates in itself a failure to have regard to the standard non-parole period as a guide post or benchmark. 28 As I have already indicated, I do not propose to deal with the specific errors alleged by the Crown to have been committed in the course of the sentencing exercise. Nor is it necessary for present purposes to debate the question of concurrency or accumulation upon the sentence that the respondent is already serving. Those aspects of the sentencing exercise may have to be revisited by a differently constituted Court on another occasion. 29 The orders I propose are :- 1. The sentence imposed by Moore ADCJ on 9 October 2007 is set aside. 2. The matter is remitted to the District Court for expedited determination afresh by a different judge. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.