JUDGES:	PRIEST AND T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2019
DATE OF JUDGMENT:	19 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 135
JUDGMENT APPEALED FROM:	DPP v Martinez [2018] VCC 978 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Theft – Arson – Conduct endangering life – Criminal damage – Late guilty plea – Appellant sentenced to seven years and three months’ imprisonment with non-parole period of five years and 10 months – Whether sentence and non-parole period manifestly excessive – Serious example of offending – No remorse – Low prospects of rehabilitation – High risk of re-offending – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J O’Connor	Mr K Reynolds, James Dowsley & Associates
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

For the reasons given by T Forrest JA, whose judgment I have had the considerable advantage of reading in draft, I agree that this appeal should be dismissed.

T FORREST JA:

Procedural background

On 23 April 2018, the appellant pleaded guilty to one charge each of theft, arson, conduct endangering life and criminal damage. On 27 June 2018, the appellant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1.
Theft

[Crimes Act 1958 s 74(1)]
10 years’ imprisonment 1 year and 8 months’ imprisonment 10 months

2.
Arson

[Crimes Act 1958 s 197(6)]
15 years’ imprisonment 2 years and 6 months’ imprisonment 7 months

3.
Conduct endangering life

[Crimes Act 1958 s 22]
10 years’ imprisonment 5 years and 6 months’ imprisonment Base

4.
Criminal damage

[Crimes Act 1958 s 197(1)]
10 years’ imprisonment 2 years’ imprisonment 4 months

Total Effective Sentence: 7 years and 3 months’ imprisonment

Non-Parole Period: 5 years and 10 months’ imprisonment

(1) of the Sentencing Act)Pre-sentence detention declaration
(s 18: 538 days

Sentencing Act)Section 6AAA statement (: 9 years’ imprisonment with a non-parole period of 7 years and 6 months

Other orders Driver’s licence cancelled for 12 months and disqualified from obtaining a licence for a period ending 6 months after release from custody; compensation in the sum of $14,061.51 in favour of the Chief Commissioner of Police; and forfeiture of flat tow truck and mobile phone.

Charge	Offence	Maximum	Sentence	Cumulation
1.	Theft [Crimes Act 1958 s 74(1)]	10 years’ imprisonment	1 year and 8 months’ imprisonment	10 months
2.	Arson [Crimes Act 1958 s 197(6)]	15 years’ imprisonment	2 years and 6 months’ imprisonment	7 months
3.	Conduct endangering life [Crimes Act 1958 s 22]	10 years’ imprisonment	5 years and 6 months’ imprisonment	Base
4.	Criminal damage [Crimes Act 1958 s 197(1)]	10 years’ imprisonment	2 years’ imprisonment	4 months
Total Effective Sentence:	7 years and 3 months’ imprisonment
Non-Parole Period:	5 years and 10 months’ imprisonment
(1) of the Sentencing Act)Pre-sentence detention declaration (s 18:	538 days
*Sentencing Act)*Section 6AAA statement (:	9 years’ imprisonment with a non-parole period of 7 years and 6 months
Other orders	Driver’s licence cancelled for 12 months and disqualified from obtaining a licence for a period ending 6 months after release from custody; compensation in the sum of $14,061.51 in favour of the Chief Commissioner of Police; and forfeiture of flat tow truck and mobile phone.

The appellant sought leave to appeal against his sentence on the following grounds:

1.The sentencing judge erred in diminishing the weight to be given to the fifth principle in R v Verdins (2007) 16 VR 269.
2.The sentence on charge 3, the total effective sentence and the non-parole period are, in all the circumstances of the case, manifestly excessive.

On 4 October 2018, Priest JA refused leave with respect to the first proposed ground but granted leave to appeal on the second proposed ground. His Honour considered the ground to be reasonably arguable.

Factual background

I shall briefly set…

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: Andrew Martinez v The Queen [2019] VSCA 135
Case: [2019] VSCA 135
Decision Date: 19 June 2019

CaseChat Overview and Summary

The case of Martinez v The Queen involved the appellant, Martinez, who was appealing against his sentence for a series of serious criminal offences, including theft, arson, and conduct endangering life. The case was heard by the High Court of Australia, which had the responsibility of determining whether the sentence imposed was manifestly excessive and whether the non-parole period was justified. The court was tasked with assessing the seriousness of the offending, the appellant’s culpability, and his prospects of rehabilitation.

The primary legal issues the court considered were the proportionality of the sentence in relation to the crimes committed and whether the non-parole period was appropriate. The court had to balance the need for punishment and deterrence against the appellant's prospects for rehabilitation and the principles of sentencing. Key considerations included the severity of the offences, the appellant's lack of remorse, and his low prospects for rehabilitation.

In its judgment, the court found that the sentence and non-parole period were not manifestly excessive. It held that the appellant's offending was of a serious nature, and his lack of remorse and high risk of re-offending justified a substantial custodial sentence. The court concluded that the sentence reflected the gravity of the crimes and the need to protect the community. The appeal was dismissed, and the original sentence was upheld.

No additional orders were made beyond the dismissal of the appeal. The court’s decision affirmed the importance of considering both the severity of the crimes and the individual circumstances of the offender when determining an appropriate sentence.

Orders