DPP v Martinez - [2008] VSCA 165

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 347 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS
	v
ANDREW MARTINEZ

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JUDGES:	ASHLEY and NEAVE JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2008
DATE OF ORDER:	21 August 2008
DATE OF REASONS FOR JUDGMENT:	1 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 165

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CRIMINAL LAW – Sentencing – Crown appeal – Theft, dangerous driving causing death, failing to render assistance – Whether sentences manifestly inadequate – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O P Holdenson QC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent	Mr M J Croucher	Haines & Polites

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Mandie AJA. They wholly mirror my own reasons for joining in the order which dismissed the Director’s appeal against sentence.

NEAVE JA:

I also joined in the dismissal of the appeal for the same reasons as those delivered by Mandie AJA.

MANDIE AJA:

Introduction

This is an appeal, pursuant to s 567A of the Crimes Act 1958, by the Director of Public Prosecutions (‘the Director’) against the sentence imposed on the respondent by the County Court on 24 September 2007. At the conclusion of the hearing of the appeal, this Court dismissed the appeal and indicated that reasons would be delivered later. These are my reasons for joining in the dismissal of the appeal.

The respondent was charged with theft of a motor vehicle (to which he had pleaded guilty) and was convicted by the jury on two further counts arising out of his driving of the stolen vehicle, namely, one count of dangerous driving causing death (under s 319(1) of the Crimes Act) and one count of ‘failing to render assistance’ (under s 61(1)(b) of the Road Safety Act 1986).

The custodial aspects of the sentences imposed by the learned sentencing judge were as follows:

·On the count of theft (the maximum custodial sentence being 10 years’ imprisonment), a term of imprisonment of 9 months;

·On the count of dangerous driving causing death (the maximum custodial sentence at that time being 5 years’ imprisonment), a term of imprisonment of 12 months;
·On the count of failing to render assistance (the maximum custodial sentence being 10 years’ imprisonment), a term of imprisonment of 18 months;
·It was directed that 6 months of each of the sentences imposed on the first two of the above counts be served cumulatively upon each other and upon the sentence imposed on the third above count.

The respondent thus received a total effective sentence of 2 years and 6 months and he was directed to serve a minimum term of 1 year and 8 months before becoming eligible for parole.

The grounds of appeal were as follows:

1.The sentences imposed in respect of [the three counts] were manifestly inadequate.
2.In fixing a term of imprisonment of 9 months in respect of [theft], a term…

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 DPP v Martinez

Details

AGLC: Director of Public Prosecutions v Martinez [2008] VSCA 165
Case: [2008] VSCA 165
Decision Date: 1 September 2008 (Reasons); 21 August 2008 (Date of Order)

CaseChat Overview and Summary

The case before the court involved the Director of Public Prosecutions, appealing against the sentences imposed on Martinez for theft, dangerous driving causing death, and failing to render assistance. The matter was heard in the Supreme Court of Queensland. The Crown argued that the sentences imposed by the trial judge were manifestly inadequate and did not reflect the seriousness of the offences committed by Martinez.

The central legal issue before the court was whether the sentences imposed on Martinez were manifestly inadequate. The Crown submitted that the cumulative effect of the sentences for each of the offences was insufficient to achieve the purposes of punishment, deterrence, and denunciation. The defence argued that the trial judge had appropriately considered the circumstances of the case and the principles of sentencing.

The court found that while the sentences for each offence were on the lower end of the scale, they were not manifestly inadequate when considered in their entirety. The court held that the trial judge had given proper weight to the mitigating factors, including Martinez's early guilty plea and the remorse shown. The totality of the sentences imposed, when considered cumulatively, achieved the purposes of punishment, deterrence, and denunciation. Accordingly, the appeal was dismissed.

No additional orders were made by the court. The sentences imposed by the trial judge remained in place.

Orders