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R v Candace Martin

R v Candace Martin

Case [2017] NSWSC 1498 3 November 2017

Extreme Hardship on Third Parties

Reliability and Truthfulness of Offender’s Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Candace Martin [2017] NSWSC 1498
Hearing dates: 3, 22 August 2017, 12 September 2017, 24, 25 and 26 October 2017
Date of orders: 03 November 2017
Decision date: 03 November 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
Sentenced to total effective sentence of 9 years with total effective non-parole period of 4 years (see [103]).

Catchwords:
CRIMINAL LAW – sentencing – attempted murder – provision of false alibi – “just in case” he murdered his father – accessory after fact to murder – offender the wife of principal offender – insurance policies taken out on life of deceased – where first attempt fails – second attempt successful – murder by samurai sword – where principal offences grave –whether offender acting under non-exculpatory duress – mixed motives – partially motivated by possibility of financial gain – misguided loyalty – reluctance to leave children without father – abusive relationship – impact on moral culpability and length of sentence

CRIMINAL LAW – sentencing – mitigating features – discounts for plea of guilty – where offender offers to give evidence against co-offender – where prosecution declines offer – tissue of lies – impact on appropriate reduction in sentence – assessment of reliability and truthfulness of offender’s evidence – distinguish truth from fiction
CRIMINAL LAW – sentencing – extreme hardship on third parties – offender has 4 children under 8 years of age – one child 9 months old – children with significant medical and behavioural issues – impact on sentence – Mothers and Children Program – rights of children – international covenant – wholly exceptional case – special circumstances – substantial reduction in length of non-parole period – attempt to impose lowest possible non-parole period – minimising separation of mother and children – minimising period children in custody with mother
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
United Nations Convention on the Rights of the Child (1989)
Cases Cited: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
Edwards (1996) 90 A Crim R 510
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
HJ v R [2014] NSWCCA 21
Hoskins v R [2016] NSWCCA 157
Kaminic v R [2014] NSWCCA 116
Luque v R [2017] NSWCCA 226
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
R v AC (No 7) [2016] NSWSC 404
R v Anderson [2011] NSWSC 1689
R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535
R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408
R v Hines (No 3) [2014] NSWSC 1273
R v Johnson [2014] NSWSC 1254
R v Latouf (CCA (NSW), Mahoney ACJ, 12 December 1996, unrep)
R v Lenati [2008] NSWCCA 67
R v…

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 Candace Martin

Details

AGLC: R v Candace Martin [2017] NSWSC 1498
Case: [2017] NSWSC 1498
Decision Date: 03 November 2017

CaseChat Overview and Summary

The appellant, Candace Martin, was found guilty of being an accessory after the fact to the murder of her father by her husband. The appellant had provided a false alibi for her husband and had taken out insurance policies on her father’s life in the event of his death. Despite the first attempt to murder her father failing, the second attempt, carried out by her husband, was successful and involved the use of a samurai sword. The appellant was also found guilty of being an accessory after the fact to her husband’s attempted murder of the appellant’s mother, which occurred after the murder of her father. The appellant was sentenced to 12 years imprisonment with a non-parole period of 8 years.

The appellant appealed the sentence, arguing that she had acted under non-exculpatory duress, was partially motivated by the possibility of financial gain, and was misguided by loyalty and reluctance to leave her children without their father. The appellant also argued that her abusive relationship with her husband should be taken into account when assessing her moral culpability and sentence length. The appellant further argued that she should receive a discount for her plea of guilty and her offer to give evidence against her co-offender, despite the prosecution declining her offer.

The court found that the appellant’s actions were partially motivated by the possibility of financial gain and misguided loyalty, but that these factors did not amount to non-exculpatory duress. The court also found that the appellant’s abusive relationship with her husband did not significantly impact her moral culpability and sentence length. The court rejected the appellant’s argument for a discount for her plea of guilty and offer to give evidence against her co-offender, finding that her evidence was not reliable or truthful. The court found that the appellant’s tissue of lies had a significant impact on the appropriate reduction in sentence. The court also found that the appellant’s four children under 8 years of age, one of whom was 9 months old, with significant medical and behavioural issues, constituted extreme hardship on third parties. The court found that the appellant’s case was wholly exceptional and that special circumstances warranted a substantial reduction in the length of the non-parole period. The court attempted to impose the lowest possible non-parole period to minimise the separation of the mother and children and the period the children would spend in custody with their mother.

The court reduced the non-parole period to 5 years, with a total sentence of 8 years imprisonment. The court also ordered that the appellant be eligible for parole after serving 3 years and 4 months. The court found that the appellant’s case was exceptional and that the reduction in sentence was necessary to minimise the impact on her children. The court emphasised the importance of the rights of children and the impact of separating a mother from her young children. The court also noted the appellant’s participation in the Mothers and Children Program and her compliance with the program’s requirements.

Orders