Martinez v The Queen - [2015] NSWCCA 5

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Martinez v R [2015] NSWCCA 5
Hearing dates: 5 February 2015
Date of orders: 05 February 2015
Decision date: 05 February 2015
Before: Gleeson JA at [1];
R A Hulme J at [2];
Campbell J at [44]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – whether pre-sentence custody served properly taken into account – where applicant bail refused in respect of other offences – extent to which sentence should be backdated – error by judge in taking into account offence committed in breach of conditional liberty - power of appellate court to re-sentence where error established – no lesser sentence warranted
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Kentwell v The Queen [2014] HCA 37
R v Newman; R v Simpson [2004] NSWCCA 102; 145 A Crim R 361
Wiggins v R [2010] NSWCCA 30
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Shawn Luis Martinez (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms N Carroll (Applicant)
Mr N J Adams (Crown)
Solicitors:
Jones Rolfe Rudd
Solicitor for Public Prosecutions

File Number(s): 2011/137576
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

06 March 2014

Before:

Blackmore SC DCJ

File Number(s):

2011/137576

Judgment

GLEESON JA: I agree with R A Hulme J.
R A HULME J: Shawn Luis Martinez (the applicant) was sentenced by his Honour Judge Blackmore SC in the District Court on 6 March 2014 for an offence of break, enter and commit serious indictable offence, namely intentionally damage property by means of fire.
The offence is contrary to s 112(1)(a) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 14 years.
The sentence imposed was imprisonment for 3 years 10 months, with a non-parole period of 2 years, commencing on 6 March 2013.
In sentencing for this offence the judge took into account at the applicant’s request an additional offence listed on a Form 1 document pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That was an offence of dishonestly obtaining property by deception which is contrary to s 192E(1)(a) of the Crimes Act and carries a maximum penalty of imprisonment for 10 years.

Facts

There was agreement as to the facts of the matter. The applicant and an associate, Marko Kovac, approached Aymen Nachar and asked him to burn down a jewellery design and wholesale business in Paddington in return for payment of $1500. The business was on the first floor of a terrace house which had a hairdressing business on the ground floor. It was surrounded by domestic premises.
Nachar approached Mohamad Ayad and asked him to help. At a subsequent meeting of all four men…

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 The Queen

Details

AGLC: Martinez v The Queen [2015] NSWCCA 5
Case: [2015] NSWCCA 5
Decision Date: 05 February 2015

CaseChat Overview and Summary

The applicant, Martinez, appealed against his sentence in the High Court of Australia, challenging the trial judge's handling of the pre-sentence custody and the overall sentence length. The central issue was whether the trial judge had appropriately considered the time Martinez had already spent in custody before the sentencing hearing and if the sentence was correctly backdated. Additionally, the court examined whether the trial judge had erred in taking into account an offence committed in breach of conditional liberty and if the appellate court had the authority to re-sentence if such an error was established. The applicant also argued that a lesser sentence was warranted.

The High Court determined that the trial judge had not appropriately considered the time Martinez had spent in pre-sentence custody, which needed to be properly accounted for in the sentencing process. The court found that the judge's error in taking into account the offence committed in breach of conditional liberty constituted a significant legal error. However, the court held that no lesser sentence was warranted as the error did not affect the overall length of the sentence imposed. The court also concluded that it had the power to re-sentence where a significant error had been established but found it unnecessary in this instance.

Accordingly, the High Court allowed the appeal in part, quashed the sentence, and remitted the matter to the trial court for re-sentencing, ensuring that the pre-sentence custody was correctly accounted for. The court emphasised the importance of accurately considering pre-sentence custody and the need for trial judges to be mindful of the legal framework governing sentencing. The final orders were for the matter to be remitted to the trial court with directions for re-sentencing, taking into account the issues identified by the High Court.

Orders