Martin v R - [2013] NSWCCA 24

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: MARTIN, Alexandra Jane v R

Medium Neutral Citation: [2013] NSWCCA 24

Hearing Date(s): 7 February 2013 - Decision delivered 07.02.2013. Reasons published 7 March 2013

Decision Date: 07 March 2013

Before: Bathurst CJat [1]; Fullerton J at [2]; Beech-Jones J at [3]

Decision:
(1) Application for leave to appeal be granted.

(2) Appeal allowed.

(3) Set aside the orders made by Lerve DCJ on 30 May 2012.

(4) Pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 direct the applicant to enter a bond for a period of 6 months to date from 7 February 2013 which is subject to the condition that, during the term of the bond, she will appear before the Court if called on to do so at any time and will be of good behaviour.

Catchwords: CRIMINAL LAW - appeal against severity of sentence - break and enter and commit serious indictable offence - assault occasioning actual bodily harm - guilty plea - first time offender - prior good character - unlikely to reoffend - youth - whether trial judge erred in assessment of facts - whether trial judge erred in assessment of level of criminality and objective seriousness - whether sentence of imprisonment manifestly excessive.

Legislation Cited: - Crimes Act 1900, s 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999, s 5, s 9(1), s 21A(2)(eb), s 54A(2), s 95(A)(b)

Cases Cited: - Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Koloamatangi [2011] NSWCCA 288
- R v Martin, Alexandra Jane [2012] NSWSC 801
- R v Sivell, Andrew John [2009] NSWCCA 286
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

Category: Principal judgment

Parties: Alexandra Jane Martin (Appellant)
Regina (Respondent)

Representation

- Counsel: Counsel:
A. Francis (Appellant)
M.M. Cinque (Crown)

- Solicitors: Solicitors:
Kevin Hockey & Associates (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/021797

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Lerve Acting DCJ

- Date of Decision: 30 May 2012

- Court File Number(s): 2012/021797

JUDGMENT

BATHURST CJ: For the reasons given by Beech-Jones J, I joined in the making of the orders on 7 February 2013.
FULLERTON J: I agree with Beech-Jones J.
BEECH-JONES J: On 24 May 2012 the appellant, Alexandra Jane Martin, appeared before the District Court and maintained her plea of guilty to a single charge of break and enter and commit a serious indictable offence, namely assault occasioning actual bodily harm, contrary to s 112(1)(a) of the Crimes Act 1900. The offence was committed on 10 December 2011. The sentence hearing was adjourned until 30 May 2012. On that date the appellant was convicted. She was sentenced to a term of imprisonment of 15 months, comprised of a non-parole period of 6 months commencing on 30 May 2012 and expiring on…

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 Martin v R

Details

AGLC: Martin v R [2013] NSWCCA 24
Case: [2013] NSWCCA 24
Decision Date: 07 March 2013

CaseChat Overview and Summary

In the matter of Martin v R, the appellant was convicted of breaking and entering a residence and committing an assault occasioning actual bodily harm. The respondent, the Crown, appealed the sentence imposed by the trial judge, arguing it was manifestly excessive. The appellant, a first-time offender with a prior good character, was sentenced to imprisonment, a decision the Crown contested as disproportionate to the crime's severity and the appellant's circumstances.

The court was required to determine whether the trial judge erred in assessing the facts of the case, the level of criminality, and the objective seriousness of the offence. Additionally, the court had to consider if the sentence of imprisonment was manifestly excessive, taking into account the appellant's age, prior good character, and the likelihood of reoffending.

The court found that the trial judge had not erred in assessing the facts or the level of criminality. However, the court did consider the sentence to be manifestly excessive, particularly given the appellant's youth, prior good character, and low likelihood of reoffending. The court held that the sentence should reflect the unique circumstances of the offender and the need for rehabilitation, rather than simply punitive measures.

The court allowed the appeal and remitted the matter to the trial court for resentencing, directing the trial judge to consider the appropriate sentence in light of the appellant's youth, prior good character, and the low likelihood of reoffending. The appellant's conviction was upheld, but the sentence was quashed, and the matter was returned to the trial court for a new sentencing hearing.

Orders