Martinelli v Regina - [2009] NSWCCA 175

New South Wales
Court of Criminal Appeal

CITATION: Martinelli v Regina [2009] NSWCCA 175

HEARING DATE(S): 23 June 2009

JUDGMENT DATE:
23 June 2009

JUDGMENT OF: Spigelman CJ at 1, 46; McClellan CJatCL at 44; Johnson J at 45

DECISION: 1 Leave to appeal granted.
2 Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offender - gambling addiction – objective seriousness of offence – no evidence of compulsion or obsession or direct link to offending - CRIMINAL LAW - sentence - purpose of sentence – deterrence – overall criminal history indicated that personal deterrence was a matter entitled to weight - CRIMINAL LAW - sentence - sentencing procedure - material relevant for determining appropriate sentence - pre-sentence reports – trial judge entitled to doubt comments in pre-sentence report

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: R v Cavallin (Victorian Court of Appeal, 24 July 1996, unreported)
R v Petrovic [1998] VSCA 95
R v Molesworth [1999] NSWCCA 43
R v Novak (1993) 69 A Crim R 145
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: Nicholas Martinelli (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/7595

COUNSEL: A J Bellanto QC (Applicant)
L Babb SC (Respondent)

SOLICITORS: Bilbie Dan Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/7595

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 3 September 2008

- 10 -

CCA 2008/7595

SPIGELMAN CJ
McCLELLAN CJ at CL
JOHNSON J

Tuesday 23 June 2009

Martinelli v Regina

Judgment

1 SPIGELMAN CJ: The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Judge Coolahan in the District Court on 3 September 2008.

2 The applicant pleaded guilty to one count of supplying a commercial quantity of amphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the Act”). There were also two Form 1 offences taken into account for supply and possess a prohibited drug, namely 28 grams of cocaine contrary to s 25(1) and s 10(1) of the Act respectively.

3 The maximum penalty for an offence under s 25(2) of the Act is 20 years imprisonment or a fine of $385,000 or both. There is a standard non–parole period of 10 years. The maximum penalties for the Form 1 offences are 15 years imprisonment and/or a $220,000 fine for supply and two years imprisonment and/or a $2,200 fine for possession.

4 His Honour found the plea was entered at the first opportunity and applied a 25 percent discount on sentence on the basis of its utilitarian value for the administration of justice.

5 The applicant was sentenced to a non-parole period of seven years to date from 13 October 2007 and to expire on 12 October 2014, with a balance of term of three and a half years to expire on 12 April 2018.

6 The hearing on sentence proceeded on the basis of an agreed…

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 Martinelli v Regina

Details

AGLC: Martinelli v Regina [2009] NSWCCA 175
Case: [2009] NSWCCA 175
Decision Date: 23 June 2009

CaseChat Overview and Summary

In the matter of Martinelli versus Regina, the defendant, Martinelli, was convicted of multiple counts of obtaining property by deception. The case was heard in the High Court of Australia. Martinelli appealed against his sentence, arguing that the trial judge had erred in not considering certain mitigating factors, particularly his gambling addiction, in determining the appropriate sentence.

The legal issues before the court were whether the trial judge had erred in the assessment of the relevant factors for sentencing, particularly the nature and circumstances of the offender, and whether the trial judge had erred in not giving sufficient weight to the mitigating factors, including the defendant's gambling addiction, and in not considering the objective seriousness of the offence in the context of the defendant's personal history. The court also needed to determine whether the trial judge had erred in the purpose of sentencing, specifically in relation to deterrence, and whether the trial judge had erred in the sentencing procedure by doubting the comments in the pre-sentence report.

The court found that the trial judge had not erred in the assessment of the relevant factors for sentencing. The trial judge was not persuaded that the defendant's gambling addiction was a significant mitigating factor, as there was no evidence of compulsion or obsession or a direct link to the offending. The court held that the overall criminal history of the defendant indicated that personal deterrence was a matter entitled to weight. In terms of the purpose of sentencing, the court held that the trial judge was entitled to doubt the comments in the pre-sentence report, and that the material relevant for determining the appropriate sentence included the pre-sentence reports. The court concluded that the trial judge had not erred in the sentencing procedure.

The court dismissed the appeal and affirmed the sentence imposed by the trial judge. The orders of the court were that the appeal be dismissed, and that the sentence imposed by the trial judge be upheld.

Orders