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Martinez v R

Martinez v R

Case [2020] NSWCCA 250 2 October 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Martinez v R [2020] NSWCCA 250
Hearing dates: 23 September 2020
Date of orders: 2 October 2020
Decision date: 02 October 2020
Before: Hoeben CJ at CL [1]
Rothman J at [2]
Bellew J at [3]
Decision:
1) Leave to appeal granted.
2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Importation of a commercial quantity of cocaine – Whether sentence manifestly excessive – Whether non-parole period manifestly excessive – Necessity to consider all relevant circumstances for the purposes of determining the non-parole period not just those circumstances favourable to the offender – Serious offending involving the importation of a substantial quantity of cocaine – Premeditated offending committed for financial gain – Reliance on sentences imposed in other cases of similar offending – Complaint of manifest excess not made out – Appeal dismissed

Legislation Cited:
Criminal Code 1995 (Cth)

Cases Cited:
Budiman v R (1998) 102 A Crim R 411
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
Deakin v The Queen (1984) 58 ALJR 765; [1984] HCA 31
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Gwardys v R [2019] NSWCCA 62
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Klomfar v R [2019] NSWCCA 61
Le Cerf v R (1975) 13 SASR 237
Lindsay v R [2012] NSWCCA 124
PO v R [2020] NSWCCA 219
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Amati [2019] NSWCCA 193
R v Dodd [1991] 57 A Crim R 349
R v Holland (2011) 205 A Crim R 429; [2011] NSWCCA 65
R v Riddell (2009) 194 A Crim R 524; [2009] NSWCCA 96
Vaiusu v R [2017] NSWCCA 71

Category: Principal judgment
Parties: Francisco Molina Martinez – Applicant
Regina – Respondent
Representation:
Counsel:
I Fraser – Applicant
D Petrushnko – Respondent
Solicitors:
Haller Grad Lawyers – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s): 2018/353687
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 December 2019

Before:

Her Honour Judge Beckett

Judgment

HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.
ROTHMAN J: I agree with Bellew J.
BELLEW J: On 10 July 2019 Francisco Molino Martinez (the applicant) pleaded guilty before the Local Court to a charge of importing a commercial quantity of a border controlled drug, namely cocaine, contrary to s 307.1(1) of the Criminal Code 1995 (Cth). The maximum penalty for that offence is imprisonment for life.
The applicant adhered to that plea when he appeared before the District Court for sentence on 8 November 2019. On 19 December 2019 he was sentenced to 7 years’ imprisonment with a non-parole period of 4 years and 8 months’ imprisonment.
The applicant now seeks…

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 Martinez v R

Details

AGLC: Martinez v The Queen [2020] NSWCCA 250
Case: [2020] NSWCCA 250
Decision Date: 02 October 2020

CaseChat Overview and Summary

In the case of Martinez v R, the appellant, Martinez, was convicted of importing a commercial quantity of cocaine and was sentenced to a term of imprisonment. The appeal was against the severity of the sentence imposed, specifically challenging the length of the non-parole period. Martinez argued that the sentence was manifestly excessive, given the totality of circumstances, and that the court had failed to adequately consider all relevant factors. The High Court of Australia was tasked with determining whether the sentence and the non-parole period were indeed manifestly excessive, considering the nature and circumstances of the offence.

The court examined the principles governing sentencing in cases of serious drug offences, particularly the importation of a substantial quantity of cocaine. It was essential to determine whether the sentence imposed was manifestly excessive by considering the totality of circumstances, not just those favourable to the offender. The court also considered the appellant's criminal history, the degree of premeditation, and the financial gain derived from the offending. The primary legal issue was whether the sentence, including the non-parole period, was manifestly excessive when all relevant circumstances were taken into account.

In its reasoning, the court highlighted that the offence involved a significant quantity of cocaine and was premeditated, indicating a serious level of criminal conduct. The court noted that the sentence imposed was not disproportionate when compared to other cases of similar offending. It emphasised the necessity to consider all relevant circumstances, including those that were not favourable to the offender, when determining the non-parole period. The appeal was dismissed as the court found that the sentence was not manifestly excessive, and the appellant's complaint did not succeed. The sentence imposed by the lower court was upheld.

Orders