Martin v R; R v Martin - [2021] NSWCCA 316

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Martin v R; Martin v R [2021] NSWCCA 316
Hearing dates: 1 September 2021
Decision date: 20 December 2021
Before: Leeming JA; Hamill J; Lonergan J
Decision:
In proceeding 2013/11122 (Peter Martin):
1. Grant leave to appeal, confined to grounds 2 and 3.
2. Appeal allowed.
3. Set aside the sentence imposed by the District Court on 12 May 2017 and in lieu thereof sentence him to imprisonment for a term of 23 years and 9 months, commencing 13 January 2013, with a non-parole period expiring 13 October 2030, and with the balance of term expiring 13 October 2036. The earliest date on which he is eligible for release is 13 October 2030.
In proceeding 2013/11126 (Jim Martin):
1. Grant leave to appeal, confined to grounds 2 and 3.
2. Appeal allowed.
3. Set aside the sentence imposed by the District Court on 12 May 2017 and in lieu thereof sentence him to imprisonment for a term of 22 years and 4 months, commencing 13 January 2015, with a non-parole period expiring 13 October 2031, and with the balance of term expiring 13 May 2037. The earliest date on which he is eligible for release is 13 October 2031.

Catchwords:
CRIMINAL LAW – appeal against sentence – applicants pleaded guilty to manufacturing large commercial quantity of prohibited drug – whether error in finding applicants to be “principals” – whether error in determining discount for guilty pleas – significance of lengthy sentencing proceedings on contested issues of fact, resolved adversely to applicants – whether error in failing to find special circumstances – whether sentence manifestly excessive – all grounds save last dismissed – appeal allowed and applicants resentenced

Legislation Cited:
Crimes Act 1900 (NSW), s 203E
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22 (version date 25 October 2016)
Criminal Appeal Act 1912 (NSW), s 5
Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 24A, 33

Cases Cited:
Bell v R [2019] NSWCCA 271
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Hall v The Queen [2021] NSWCCA 220
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kwok v R [2018] NSWCCA 200
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Magro v R [2020] NSWCCA 25
Nanai v R [2010] NSWCCA 21
Nealon v R [2021] NSWCCA 286
Nguyen v R [2011] NSWCCA 92
Olbrich v R [1999] 199 CLR 281
Owens v R [2017] NSWCCA 16
R v AB [2011] NSWCCA 229; 59 MVR 356
R v Kalache [2000] NSWCCA 2
R v Little and Walsh [2006] NSWCCA 406
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Wan [2017] NSWCCA 261
Regina v Oinonen [1999] NSWCCA 310

Category: Principal judgment
Parties:
2013/11122
Peter Geoffrey Martin (Applicant)
Regina (Respondent)
2013/11126
Jim Martin (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Stratton SC, A Moen (Applicants)
G…

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.

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Details

Case: [2021] NSWCCA 316
Decision Date: 20 December 2021

CaseChat Overview and Summary

The applicants, Martin and another, appealed against their sentences following their convictions for manufacturing a large commercial quantity of a prohibited drug. The case was heard by the court of appeal, which reviewed the sentencing decisions made by the lower court. The primary issues before the court were whether the lower court erred in finding the applicants to be "principals" in the drug manufacturing operation, whether the court erred in determining the discount for the applicants' guilty pleas, and whether the lengthy sentencing proceedings had an impact on the contested issues of fact, which were resolved adversely to the applicants. Additionally, the court needed to determine whether the lower court erred in failing to find special circumstances and whether the sentence was manifestly excessive.

The court of appeal found that all grounds for appeal, except the last, were dismissed. The court held that the lower court was correct in finding the applicants to be "principals" in the drug manufacturing operation, as the evidence supported this conclusion. Regarding the discount for the applicants' guilty pleas, the court of appeal found no error in the lower court's determination. The lengthy sentencing proceedings did not impact the contested issues of fact, as the court determined that the evidence was sufficient to resolve those issues against the applicants. However, the court of appeal found that the lower court erred in failing to find special circumstances, as there were mitigating factors that should have been considered. Furthermore, the court of appeal concluded that the sentence was manifestly excessive, and as a result, the applicants' appeal was allowed.

The applicants were resentenced by the court of appeal, taking into account the special circumstances and the appropriate level of punishment for their crimes. The final orders of the court of appeal were that the applicants' convictions were upheld, but their sentences were quashed and they were resentenced. The court of appeal directed that the resentencing be conducted by a different judge to ensure fairness and impartiality.

Orders