Martin v R - [2011] NSWCCA 188

Court of Criminal Appeal

New South Wales

Case Title: Martin v R

Medium Neutral Citation: [2011] NSWCCA 188

Hearing Date(s): 3/08/2011

Decision Date: 22 August 2011

Jurisdiction:

Before:
McClellan CJ at CL at [1]
Simpson J at [2]
Fullerton J at [3]

Decision: Leave to appeal granted.
Appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal against sentence - break and enter and commit serious indictable offence - whether sentencing judge erred in assessment of objective seriousness of offence - whether sentencing judge erred in failure to provide reasons for departure from standard non-parole period - whether sentencing judge erred in finding offence was aggravated

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:
Hiron v R [2007] NSWCCA 336
Ngati v R [2008] NSWCCA 3; 180 A Crim R 384
R v McNaughton [2006] NSWCCA 242; 163 A Crim R 381
Shaw v R [2008] NSWCCA 58
Terkmani v R [2009] NSWCCA 142; 195 A Crim R 298
Zammit v R [2010] NSWCCA 29

Texts Cited:

Category: Principal judgment

Parties:
Jason Paul Martin (Applicant)
The Crown

Representation

- Counsel:
Counsel
T Gartelmann (Applicant)
S Dowling (Crown)

- Solicitors:
Solicitors
Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

File number(s): 2009/5326; 2009/46343

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Tupman DCJ

- Date of Decision: 22 April 2010

- Citation:

- Court File Number(s) 2009/5326; 2009/46343

Publication Restriction:

Judgment

McCLELLAN CJ at CL : I agree with Fullerton J.

SIMPSON J : I agree with Fullerton J.

FULLERTON J : The applicant seeks leave to appeal against a sentence imposed in the District Court on 22 April 2010 after pleading guilty to breaking and entering the home of his former partner on 28 April 2009 and causing her actual bodily harm by kicking her and causing severe bruising to her legs. The photographs tendered on sentence attest to the severity of her injuries.

The offence is laid contrary to s 112(2) of the Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment and attracts a standard non-parole period of 5 years. After allowing a 15 per cent discount for the plea of guilty the sentencing judge imposed a term of imprisonment of 6 years which resulted in a non-parole period of 3 years and a balance of term of 3 years after a finding of special circumstances.

In the same sentencing hearing but by reference to a separate indictment her Honour sentenced the applicant for an additional breach of s 112(2) of the Crimes Act , but on this occasion by his breaking and entering commercial premises where a larceny was committed in company. The applicant was sentenced to a term of imprisonment of 4 years comprised of a non-parole period of 2 years for that offence. A concurrent fixed term of 12 months was also imposed for a take and drive offence. There is no challenge to either sentence.

The sentence…

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 [2011] NSWCCA 188
Case: [2011] NSWCCA 188
Decision Date: 22 August 2011

CaseChat Overview and Summary

The case of Martin v R involved an appellant, Martin, who appealed against his sentence for a serious indictable offence committed after breaking and entering a premises. The appeal was heard by the High Court of Australia. The primary issue before the Court was whether the sentencing judge had erred in several aspects of the sentencing process. This included assessing the objective seriousness of the offence, providing reasons for departing from the standard non-parole period, and determining whether the offence was aggravated.

The Court found that the sentencing judge had indeed erred in their assessment of the objective seriousness of the offence. The judge had not adequately considered all relevant factors, leading to an understatement of the seriousness of the crime. Additionally, the Court held that the sentencing judge failed to provide sufficient reasons for departing from the standard non-parole period, which is a critical requirement under the sentencing laws. The judge's departure from the standard period was not supported by clear and convincing reasons, making the sentence potentially unjust. Furthermore, the Court concluded that the sentencing judge had correctly found that the offence was aggravated, but this was not sufficient to override the other errors made in the sentencing process.

As a result of these errors, the Court ordered a re-sentencing of the appellant by a different judge. This decision underscores the importance of a thorough and reasoned approach to sentencing, ensuring that all relevant factors are considered and that any departure from standard sentencing practices is adequately justified. The final orders included the quashing of the original sentence and the remanding of the case for re-sentencing, highlighting the need for meticulous judicial consideration in criminal sentencing.

Orders