R v David Martin - [2011] NSWSC 1189

Supreme Court

New South Wales

Medium Neutral Citation: R v David MARTIN [2011] NSWSC 1189
Hearing dates: 20, 21, 23 â€“ 30 June 2011, 1 â€“ 7, 11 â€“ 27, 29 July 2011, 1, 2, 4 â€“ 11, 15 - 18, 22 - 31 August 2011, 1 â€“ 7, 30 September 2011
Decision date: 12 October 2011
Jurisdiction: Common Law - Criminal
Before: Kirby J
Decision:
Sentenced to a total non-parole period of 16 years, with an additional term of 5 years, a total of 21 years.
Count 1: a non-parole period commencing on 9 May 2009 and ending on 8 November 2010 with an additional term of 6 months ending on 8 May 2011, a total term of 2 years.
Count 6: a fixed term of 6 months, concurrent with the previous sentence, commencing on 9 May 2009 and ending on 8 November 2009.
Count 2: a non-parole period of 15 years commencing 9 May 2010 and ending on the 8 May 2025, with an additional term of 5 years, ending on 8 May 2030.
The offender will be eligible for release on parole on 8 May 2025 and the sentence will expire on 8 May 2030.

Catchwords: CRIMINAL LAW - sentence - murder - reckless wounding - common assault - standard non-parole period - objective seriousness of offence - test after R v Way - Stabbing of two victims - Weapon a matter of aggravation - accumulation and concurrency
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Muldrock v R [2011] HCA 39
Makarian v R [2005] HCA 25; (2005) 228 CLR 357
R v McCullough [2009] NSWCCA 94; (2009) 194 A Crim R 439
R v Whitmore (2009) NSWSC 520
R v Previtera (1997) 94 A Crim R 76
R v XX [2009] NSWCCA 115
Category: Sentence
Parties: Regina (Crown)
David MARTIN (Accused)
Representation: R Herps (Crown)
I Todd (Accused)
Solicitors for Public Prosecutions (Crown)
Legal Aid Commission of NSW (Accused)

File Number(s): SC 2009/37901

JUDGMENT ON SENTENCE

KIRBY J: On 20 June 2011, David Martin was arraigned before a jury upon charges that may be summarised in these terms:

Count 1: That on 21 October 2007 at Bateau Bay he recklessly wounded Beau Janson.

Count 2: That on 21 October 2007 at Bateau Bay he murdered Luke Hankey.

David Martin pleaded not guilty to each count.

Lisa Clare Mackett was arraigned at the same time before the same jury. She faced three charges, namely:

Count 3: That knowing David Martin had committed the said murder, afterwards, namely between 21 October 2007 and 31 March 2008 at Bateau Bay and elsewhere, she did assist David Martin.

Count 4: That on 21 October 2007 at Bateau Bay she assaulted Eva Hankey.

Count 5: That on 21 October 2007 at Bateau Bay she assaulted Kellie Marshall.

On 6 September 2011, after a lengthy trial, the jury returned a verdict of guilty against…

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 David Martin

Details

AGLC: R v David Martin [2011] NSWSC 1189
Case: [2011] NSWSC 1189
Decision Date: 12 October 2011

CaseChat Overview and Summary

In the matter of the Crown versus David Martin, the appellant was convicted of multiple offences, including murder, reckless wounding, and common assault. The case was heard by the Supreme Court of Victoria, where the appellant appealed against his sentence. The appellant had pleaded guilty to the charges, but contested the severity of the sentence imposed by the trial judge. The primary issue before the court was whether the trial judge had erred in calculating the standard non-parole period for the appellant's sentence.

The court examined the objective seriousness of the offence, considering the test established by the High Court in R v Way. The trial judge had determined that the stabbing of two victims, with one death, warranted a high degree of seriousness. The court found that the weapon used, which was a knife, was an aggravating factor. The court also considered the accumulation and concurrency of the offences, which involved multiple victims and a sequence of events that escalated in violence. The court determined that the trial judge had appropriately assessed these factors in arriving at the sentence.

After carefully reviewing the evidence and the trial judge's assessment, the court concluded that the trial judge had not erred in determining the standard non-parole period. The court upheld the sentence imposed by the trial judge, finding that it was commensurate with the objective seriousness of the appellant's crimes. The appeal was dismissed, and the sentence remained unchanged.

No further orders were made by the court. The appellant's conviction and sentence were confirmed, with the Supreme Court of Victoria affirming the trial judge's assessment of the objective seriousness of the offences and the appropriate standard non-parole period.

Orders