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Martin v R

Martin v R

Case [2019] NSWCCA 197 26 August 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Martin v R [2019] NSWCCA 197
Hearing dates: 22 July 2019
Date of orders: 26 August 2019
Decision date: 26 August 2019
Before: Basten JA at [1]
Johnson J at [2]
Price J at [90]
Decision:
1. Grant leave to appeal against sentence.
2. Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW – leave to appeal against sentence – offender pleaded guilty to 22 offences relating to child pornography and child abuse material – additional 15 child pornography offences taken into account on sentence – offender transmitted and solicited child abuse material to and from various male children – possession of child abuse material – offender transmitted indecent communications to various victims – offending conduct occurred over two-and-a-half-year period involving multiple offences and actual victims – two child victims of indecent communications identified – victims provided victim impact statements – two grounds of appeal that overall sentence was manifestly excessive as sentences imposed on discrete counts were manifestly excessive – element of artificiality in the complaints – sentences for discrete counts open to sentencing Judge – no error demonstrated – ground of appeal that overall sentence was manifestly excessive – active and persistent offender – favourable findings based on psychological evidence – cautionary approach given limited insight into offending behaviour – general deterrence a primary consideration in offences involving sexual predatory conduct towards children – no demonstrable error in total effective sentence – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74
Director of Public Prosecutions (Cth) v Ramos [2018] VSCA 290
Hong v R [2017] NSWCCA 238
Lyons v R [2017] NSWCCA 204
McNiece v R [2019] VSCA 78
Miao v R [2017] NSWCCA 89
Milliner v R [2019] NSWCCA 127
Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Peters v R [2018] NSWCCA 126
R v De Leeuw [2015] NSWCCA 183
R v Lamella [2014] NSWCCA 122
R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
R v Thalari (2009) 75 NSWLR 30; [2009] NSWCCA 170
Texts Cited: ---
Category: Principal judgment
Parties: Aaron James Martin (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr GD Wendler; Mr CLW Street (Applicant)
Mr A McGrath (Respondent)
Solicitors:
Virginia Taylor Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2015/350150
Publication restriction: ---
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

---

Citation:

---

Date of Decision:

3 August 2019

Before:

Judge Gartelmann SC

File Number(s):

2015/350150

Judgment

BASTEN JA: I agree with Johnson J.
JOHNSON J: The Applicant, Aaron James Martin, seeks leave to appeal with respect to sentences imposed at…

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 The Queen [2019] NSWCCA 197
Case: [2019] NSWCCA 197
Decision Date: 26 August 2019

CaseChat Overview and Summary

In the matter of Martin v R, the appellant sought leave to appeal against the sentence imposed by the Supreme Court of Victoria, following a guilty plea to 22 offences related to child pornography and child abuse material. The court was also asked to consider an additional 15 child pornography offences that were taken into account during sentencing. The appellant's offending conduct, which involved transmitting and soliciting child abuse material from various male children, and making indecent communications, spanned over a two-and-a-half-year period and affected multiple victims. Two victims provided impact statements highlighting the harm caused by the appellant's actions.

The primary legal issues the court addressed were whether the overall sentence was manifestly excessive and if the sentences imposed on the individual counts were also manifestly excessive. The appellant argued that there was an element of artificiality in the complaints and that the sentencing judge had not adequately considered the psychological evidence provided. The court examined the discretionary nature of sentencing for each discrete count and the considerations of general deterrence in cases involving sexual predatory conduct towards children. The court found that the sentencing judge did not demonstrate any error in the total effective sentence, considering the appellant's active and persistent offending behaviour and the need for general deterrence.

The Supreme Court held that there was no demonstrable error in the total effective sentence imposed. The court acknowledged the cautionary approach taken by the sentencing judge, given the limited insight into the appellant's offending behaviour. The court emphasised the importance of general deterrence in such cases and concluded that the sentence was appropriate. Consequently, the court granted leave to appeal but dismissed the appeal, upholding the original sentence. The court did not find any significant error in the sentencing process or the overall sentence imposed on the appellant.

Orders