Martin v The Queen - [2012] NSWCCA 253

Court of Criminal Appeal

New South Wales

Case Title: Martin v R

Medium Neutral Citation: [2012] NSWCCA 253

Hearing Date(s): 27 November 2012

Decision Date: 13 December 2012

Before: Hoeben JA at [1]
Davies J at [2]
Campbell J at [61]

Decision:
(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Quash the sentences imposed by Judge Garling in respect of the second set of offences.

(4) In lieu, sentence the Appellant as follows:

(a) In respect of Count 2 a non-parole period of 12 months commencing 30 July 2012 and expiring 29 July 2013 with an additional term of 9 months expiring 29 March 2014;

(b) In respect of Count 1, and taking in to account the matters on the Form 1 a non-parole period of 14 months commencing 30 September 2012 and expiring 29 November 2013 with an additional term of 1 year 8 months expiring on 29 July 2015;

(c) In respect of Counts 3 & 4, imprisonment for a fixed term of 12 months commencing 20 July 2012 and expiring 19 July 2013.

(d) Direct that in respect of Count 2 the Appellant be released on parole on 29 July 2013;

(e) Direct that in respect of Count 1 the Appellant be released on parole on 29 November 2013.

Catchwords: CRIMINAL LAW - sentence - indecent assault of young children - produce child pornography - offender concealed camera to film young girls - multiple offences -special circumstances - judge increased additional term rather than reducing non-parole period to preserve statutory ratio

Legislation Cited: Crimes (Sentencing Procedure) Act 1999

Cases Cited: Cross v R (No. 2) [2012] NSWCCA 234
R v Hung Lo [2005] NSWCCA 436
R v Huynh [1995] NSWCCA 220
R v Tobar; R v JAN [2004] NSWCCA 391
Terry v R [2006] NSWCCA 351

Category: Principal judgment

Parties: Ronald George Martin (Applicant)
Crown

Representation

- Counsel: Counsel:
I McLachlan (Applicant)
M Cinque (Crown)

- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/107331 & 2010/228092

Decision Under Appeal

- Before: Garling DCJ

- Date of Decision: 25 August 2011

- Court File Number(s): 2010/107331 & 2010/228092

JUDGMENT

HOEBEN JA: I agree with Davies J and the orders which his Honour proposes.
DAVIES J: On 25 August 2011 the Applicant appeared before Judge Garling in the District Court to be sentenced in respect of the following offences:

First set of offences

Counts 1 and 3: Aggravated indecent assault of a person aged under 10 years for which the maximum penalty was imprisonment for 10 years.
Count 2: Aggravated indecent assault of a person under the age of 16 years for which the maximum penalty was imprisonment for 7 years.

Second set of offences

Counts 1 and 2: Produce child pornography for which the maximum penalty was imprisonment for 10 years.
Counts 3 and 4: Aggravated film a person in a private act for which the maximum penalty was imprisonment for 5 years.

In relation to Count 1 there…

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 [2012] NSWCCA 253
Case: [2012] NSWCCA 253
Decision Date: 13 December 2012

CaseChat Overview and Summary

The case of Martin v The Queen involved the appellant, who was convicted of various serious offences, including indecent assault, production of child pornography, and using a concealed camera to film young girls. The appellant was sentenced to a term of imprisonment, with a non-parole period of 13 years and an additional term of 10 years. The central issue in this case was whether the judge correctly imposed the additional term of imprisonment on the appellant. The appellant argued that the judge should have reduced the non-parole period to maintain the statutory ratio between the non-parole period and the additional term. The appellant contended that the additional term was excessive and should have been reduced to ensure the statutory ratio was preserved.

The court examined whether the judge was correct in imposing the additional term on the appellant. The court considered the principles of sentencing in relation to the statutory ratio and the impact of the appellant's offending on the victims. The court determined that the judge was correct in imposing the additional term, as the appellant's offending was of a particularly serious nature, involving multiple victims and egregious conduct. The court held that the judge had appropriately exercised their discretion in imposing the additional term to reflect the severity of the appellant's offending and to protect the community.

In reaching its decision, the court emphasised the importance of maintaining the statutory ratio in sentencing, but also recognised that in cases of particularly heinous offending, the ratio may be departed from to ensure that the sentence reflects the seriousness of the offending. The court found that the judge had appropriately balanced the principles of sentencing and the need to protect the community in imposing the additional term on the appellant. The court rejected the appellant's argument that the additional term should have been reduced to preserve the statutory ratio.

The court upheld the sentence imposed on the appellant, with the non-parole period of 13 years and the additional term of 10 years. The court held that the sentence was appropriate and reflected the seriousness of the appellant's offending and the need to protect the community. The court did not order any variation to the sentence imposed on the appellant.

Orders