R v Alexandra Jane Martin - [2012] NSWSC 801

Supreme Court

New South Wales

Case Title: R v. Alexandra Jane Martin

Medium Neutral Citation: [2012] NSWSC 801

Hearing Date(s): 12 July 2012

Decision Date: 17 July 2012

Jurisdiction: Common Law - Criminal

Before: S G Campbell J

Decision:
Conditional bail granted pursuant to terms in paragraph 36.

Catchwords: [CRIMINAL LAW] - bail application - bail pending appeal after conviction and sentence on indictment - s30AA Bail Act 1978 (NSW) - whether special or exceptional circumstances exist justifying the grant of bail - necessary to examine totality of circumstances - likely whole or major part of custodial sentence will have been served before the hearing of the appeal - conditional bail granted.

Legislation Cited: Bail Act 1978 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited: Chamberlain v. The Queen (No. 1) (1983) 153 CLR 514
Chew v. The Queen [No. 2] (1991) 66 ALJR 221
Doggett v. The Queen (unreported), High Court of Australia, Callinan J, 2nd November 2000
Ex Parte Maher [1986] 1 Qd R 303
Marotta v. The Queen (1999) 73 ALJR 265
Peters v. The Queen (1996) 71 ALJR 309
Re. Clarkson [1986] VR 583
Re. Jackson [1997] 2 VR 1
Re. Pennant [1997] 2 VR 85
R. v. Antoun [2005] NSWCCA 270
R. v. Charbel Rahme [2003] NSWCA 135
R. v. Giordano (1982) 31 SASR 241
R. v. Hilton (1987) 7NSWLR 745
R. v. Southgate (1960) 78 WN (NSW) 44
R. v. Wilson (1994) 34 NSWLR 1
R. v. Waters (1990) 9 Petty SR 4016
United Mexican States v. Cabal (2001) 209 CLR 165

Texts Cited: Howie, R N; Johnson, P A, Criminal Practice and Procedure NSW
A. Prof. John Willis, Bail Pending Appeal After Conviction and Sentence on Indictment (2005) 29(5) Crim LJ 296

Category: Procedural and other rulings

Parties: The Crown
Alexandra Jane Martin (Applicant)

Representation

- Counsel: Counsel:
D. Curran (Crown)
A. Francis (Applicant)

- Solicitors: Solicitors:
Office of the Director of Public Prosecutions (Crown)
Kevin Hockey & Associates (Applicant)

File number(s): 2012/21797

Publication Restriction:

JUDGMENT

The applicant seeks "appeal" bail. She was convicted upon her plea of guilty in the District Court of New South Wales on 30th May 2012 of an offence under s.112(1)(a) Crimes Act 1900 (NSW) of breaking and entering a dwelling house and committing a serious indictable offence therein. The serious indictable offence was assault occasioning actual bodily harm on an occupant of the dwelling.
The applicant had entered her plea of guilty to the offence at the earliest available opportunity when the matter was brought before the Local Court at Dubbo on 7th March 2012.
The maximum penalty prescribed for this offence is a term of imprisonment of 14 years.
The learned sentencing Judge, Acting Judge Lerve (as he then was), remarked that no sentence other than a sentence of full time custody was appropriate. In forming this view, his Honour accepted the Crown submission that there is a very significant issue of general deterrence (page 8).…

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 R v Alexandra Jane Martin

Details

AGLC: R v Alexandra Jane Martin [2012] NSWSC 801
Case: [2012] NSWSC 801
Decision Date: 17 July 2012

CaseChat Overview and Summary

Alexandra Jane Martin was before the court in an application for bail pending appeal against her conviction and sentence on indictment. The application was heard by the Supreme Court of New South Wales, which exercised its jurisdiction under section 30AA of the Bail Act 1978 (NSW). The primary issue before the court was whether there were special or exceptional circumstances that warranted granting bail pending the appeal. The court needed to consider the totality of circumstances, including the likelihood that the appellant would have served a significant portion of her custodial sentence before the appeal could be heard.

The court considered several factors in its decision. These included the appellant's criminal history, the nature and circumstances of the offence, the length and severity of the sentence imposed, and the prospects of success of the appeal. It was noted that the appellant had a limited criminal history and that the likely whole or major part of her custodial sentence would have been served before the hearing of the appeal. The court also took into account the appellant's ties to the community, her employment, and her willingness to comply with any conditions imposed as a part of the bail.

Having considered these factors, the court concluded that there were indeed special or exceptional circumstances that justified granting bail. The court was satisfied that the appellant had a real prospect of success on appeal and that it was in the interests of justice to grant bail. The court imposed certain conditions on the appellant's bail, including requirements to reside at a specified address, to report regularly to a bail supervisor, and to surrender her passport. The court granted conditional bail pending the outcome of the appeal.

The court's final orders included granting the appellant bail on the specified conditions and setting a date for the hearing of the appeal. The court emphasised the importance of the appellant complying with all conditions of her bail and warned that any breach could result in the revocation of bail and the appellant's immediate return to custody.

Orders