Martin v The Queen - [2016] NSWCCA 273

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Martin v R [2016] NSWCCA 273
Hearing dates: 30 November 2016
Decision date: 30 November 2016
Before: Hoeben CJ at CL at [1];
Adams J at [2];
R A Hulme J at [5]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – armed robbery with wounding – Crimes Act 1900 s 98 – no failure to identify and assess factors relevant to the objective seriousness of the offence – no failure to give effect to a finding of special circumstances in imposing a sentence partially accumulated on a balance of parole – no error in having regard to the victim as a “vulnerable person” in the circumstances – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) s 98
Criminal Procedure Act 1986 (NSW) s 166
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2)
Cases Cited: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Caristo v R [2011] NSWCCA 7
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Huynh [2003] NSWCCA 239
R v Moffitt (1990) 20 NSWLR 114
R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740
Category: Principal judgment
Parties: Ridge Martin (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Schaudin (Applicant)
Mr E Balodis (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2014/261981
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

11 September 2015

Before:

King SC DCJ

File Number(s):

2014/261981

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J and the orders which he proposes. I also agree with the additional comments of Adams J.
ADAMS J: I agree with the reasons of R A Hulme J and the orders he proposes. I wish to make two comments.
Firstly, as to ground 2 of the appeal, it depends upon a not altogether clear description of the special circumstances upon which the learned sentencing judge intended to act. His Honour used the phrase, “There was a need for a more substantial period of time on parole…[than would otherwise be the case]”. This is not the same as saying there should be a substantial extension of the period of parole allowed by the statutory calculus. His Honour was saying, in my view, that some extension was necessary which would, when taken with that calculus, be substantial and this is what happened. I am unpersuaded that the relatively slight extension demonstrates an inconsistency between his Honour’s reasons for the special circumstances and the result.
As to ground 3 of the appeal, it seems to me that by referring to “vulnerability”, (somewhat ambiguous in light of the statutory language in s 21A(2)(l)), his Honour was doing no more than describing in ordinary speech the circumstances of the offence itself, which he had set out in detail. The use of such a term was not procedurally unfair, since the…

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 The Queen

Details

AGLC: Martin v The Queen [2016] NSWCCA 273
Case: [2016] NSWCCA 273
Decision Date: 30 November 2016

CaseChat Overview and Summary

The appellant, Martin, was convicted of armed robbery with wounding under section 98 of the Crimes Act 1900 and was sentenced to imprisonment. Martin appealed against the severity of the sentence, arguing that the sentencing judge had failed to properly consider certain factors relevant to the seriousness of the offence, overlooked special circumstances, and erred in treating the victim as a vulnerable person. The High Court of Australia was tasked with determining whether the trial judge had erred in his assessment of the case and the appropriateness of the sentence imposed.

The court examined the arguments presented by Martin and considered whether the sentencing judge had failed to identify and assess factors relevant to the objective seriousness of the offence. The court found that the sentencing judge had indeed considered all relevant factors and had not overlooked any special circumstances. Furthermore, the court concluded that the sentencing judge had not erred in considering the victim as a vulnerable person in the circumstances of the case. The court held that the sentence was not excessive and that the trial judge had correctly balanced the interests of the community and Martin's rights.

In light of the above findings, the court dismissed Martin's appeal. The court held that there was no error in the trial judge's assessment of the case or the appropriateness of the sentence imposed. The court emphasised the importance of considering all relevant factors in sentencing and the need for a balanced approach that takes into account the interests of both the victim and the offender. The appeal was dismissed, and the original sentence stood.

The High Court of Australia dismissed Martin's appeal against sentence, confirming the trial judge's assessment of the case and the appropriateness of the sentence imposed. The court found that the trial judge had not erred in identifying and assessing factors relevant to the seriousness of the offence, had not overlooked any special circumstances, and had correctly considered the victim as a vulnerable person. The original sentence was upheld, and Martin's appeal was dismissed.

Orders