Legal Research
Cases
R v Martin

R v Martin

Case [2014] NSWCCA 283 1 December 2014

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Martin [2014] NSWCCA 283
Hearing dates: 2 September 2014
Decision date: 01 December 2014
Before: Beazley P at [1];
R A Hulme J at [75];
Garling J at [76]
Decision:
1. Appeal allowed;
2. Quash the sentences imposed by Sweeney DCJ and in their place impose the following periods of imprisonment:
(a) In respect of count 4: a fixed term of imprisonment for 9 months, commencing on 22 November 2013;
(b) In respect of count 1: a fixed term of imprisonment for 2 years, commencing on 22 May 2014;
(c) In respect of count 2: a term of imprisonment of 2 years, commencing on 22 May 2014;
(d) In respect of count 3: a term of imprisonment of 2 years, commencing on 22 May 2014;
(e) In respect of count 5: a term of imprisonment of 4 years 6 months, commencing on 22 November 2014;
(f) In respect of counts 2, 3 and 5, being the Commonwealth offences: a non-parole period of 3 years commencing on 22 May 2014.

Catchwords:
SENTENCE - Crown appeal against sentence - Criminal Appeal Act 1912, s 5D - accessing, possessing, making available and producing child pornography - whether sentence manifestly inadequate - whether residual discretion to dismiss appeal should be exercised - relevant factors

SENTENCE - Crown appeal against sentence - possession of child pornography - aggravating factors - sorting, storing and replicating material - destroying material with knowledge of police warrant
SENTENCE - Crown appeal against sentence - totality - accessing, possessing, making available and producing child pornography - whether sentences should be served concurrently - where offences of significantly different nature - need for partial accumulation to reflect totality of offending conduct
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477
DPP v Smith [2010] VSCA 215
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hutchins v Western Australia [2006] WASCA 258
Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
Mouscas v R [2008] NSWCCA 181
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v R [1998] HCA 57; 194 CLR 610
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Gommeson [2014] NSWCCA 159
R v Guest [2014] VSCA 29
R v James [2009] NSWCCA 62
R v Jarrold [2010] NSWCCA 69
R v Mara [2009] QCA 208; 196 A Crim R 506
R v Mereb; R v Younan [2014] NSWCCA 149
R v Oliver [2003] 1 Cr App R 28
R v Talbot [2009] TASSC 107
R v Wall [2002]…

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 Martin

Details

AGLC: R v Martin [2014] NSWCCA 283
Case: [2014] NSWCCA 283
Decision Date: 01 December 2014

CaseChat Overview and Summary

The appeal before the court involved the Commonwealth of Australia, acting as the Crown, and Martin, the respondent, who had been convicted of accessing, possessing, making available, and producing child pornography. Martin had been sentenced by a magistrate in the County Court of Victoria and the Crown sought to appeal the sentence under section 5D of the Criminal Appeal Act 1912, on the basis that it was manifestly inadequate. The key legal issues before the court were whether the sentence was manifestly inadequate, whether the court had the residual discretion to dismiss the appeal, and whether the sentences should be ordered to be served concurrently or partially accumulated.

In considering whether the sentence was manifestly inadequate, the court noted that the respondent had accessed, possessed, made available, and produced child pornography, and had sorted, stored, and replicated the material. The court was also mindful that Martin had destroyed material with knowledge of a police warrant. The court found that the sentence imposed was manifestly inadequate given the gravity of the respondent's offending conduct. In determining whether the residual discretion to dismiss the appeal should be exercised, the court considered relevant factors including the nature and circumstances of the offending, the culpability of the offender, and the need to uphold the integrity of the criminal justice system. The court concluded that it should exercise its residual discretion to dismiss the appeal as the sentence was manifestly inadequate and there were no exceptional circumstances that warranted dismissal. Finally, in considering whether the sentences should be served concurrently or partially accumulated, the court noted that the offences were of a significantly different nature and that partial accumulation was necessary to reflect the totality of the respondent's offending conduct.

The court ordered that the sentences imposed by the County Court be quashed and that the respondent be re-sentenced. It was ordered that the sentences be partially accumulated, with the sentences for accessing, possessing, and making available child pornography to be served concurrently, and the sentence for producing child pornography to be served consecutively to the other sentences, but to commence on the date of the re-sentencing.

Orders