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Martino v The King

Martino v The King

Case [2024] NSWCCA 93 12 June 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Martino v R [2024] NSWCCA 93
Hearing dates: 22 May 2024
Date of orders: 12 June 2024
Decision date: 12 June 2024
Before: Harrison CJ at CL at [1];
Walton J at [2];
Chen J at [3]
Decision:
(1) Grant leave to the applicant to appeal against the sentence imposed on 11 August 2023.
(2) Dismiss the appeal against the sentence.

Catchwords:
CRIME – appeals – appeals against sentence – one count of dishonestly obtain by deception a financial advantage – where applicant is self-represented – where applicant has raised eight grounds of appeal – alleged error in the backdating of sentence to account for pre-sentence custody – alleged errors in weight afforded to various factual matters – no error by sentencing judge established – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Borg v R; Gray v R [2020] NSWCCA 67
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Mattiussi v R [2023] NSWCCA 289
Ocek v R [2023] NSWCCA 308
R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
Salafia v R [2015] NSWCCA 141
Taitoko v R [2020] NSWCCA 43
Toller v R [2021] NSWCCA 204
Wiggins v R [2010] NSWCCA 30
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Antonio Domenico Martino (Applicant)
Rex (Respondent)
Representation:
Counsel:
E Wilkins SC (Respondent)
Solicitors:
Applicant (self-represented)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/00241801
Publication restriction: Subject to order made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) made by Noman SC DCJ
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 308

Date of Decision:

11 August 2023

Before:

Noman SC DCJ

File Number(s):

2018/00241801

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Antonio Domenico Martino, sought leave to appeal from the sentence imposed on him in respect of one count of dishonestly obtain by deception a financial advantage, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). One further offence under s 192E(1)(b) of the Crimes Act was taken into account upon sentencing on a Form 1. The offending involved the applicant providing identification documents of the victim to CBUS in order to induce CBUS to rollover the victim’s superannuation into a self-managed superannuation fund (‘SMSF’) established and controlled by the applicant. A total of $58,005.37 was rolled over from the victim’s CBUS account into the…

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 Martino v The King

Details

AGLC: Martino v The King [2024] NSWCCA 93
Case: [2024] NSWCCA 93
Decision Date: 12 June 2024

CaseChat Overview and Summary

In the case of Martino v The King, the applicant, Martino, appealed against his sentence for obtaining a financial advantage by deception. The appeal was heard in the High Court of Australia. Martino, who appeared self-represented, raised eight grounds of appeal, including an alleged error in the backdating of his sentence to account for time spent in pre-sentence custody and alleged errors in the weight afforded to various factual matters by the sentencing judge.

The primary legal issues before the court were whether the sentencing judge had erred in the calculation of the sentence and the weight given to specific factual matters. Martino argued that the sentence should have been backdated to the date he was first taken into custody and that certain factual findings were not adequately supported by evidence. The court needed to determine if these alleged errors were significant enough to warrant a reduction in the sentence or a re-sentencing hearing.

The court found that no significant errors had been made by the sentencing judge. The calculation of the sentence, including the backdating to account for pre-sentence custody, was deemed correct. Additionally, the weight given to the various factual matters was found to be appropriate and supported by the evidence presented at trial. Consequently, the High Court dismissed the appeal, finding that the sentencing judge had not erred in any material way. The appeal was dismissed, and the original sentence was upheld.

Orders