Legal Research
Cases
R v Martin

R v Martin

Case [2005] NSWCCA 190 20 May 2005

No judgment structure available for this case.

Type to search within this case.

CITATION:
Regina v Robert Cameron Martin [2005] NSWCCA 190

HEARING DATE(S): 29 April 2005

JUDGMENT DATE:

20 May 2005

JUDGMENT OF:
Hunt AJA at 1; Hulme J at 2; Johnson J at 3

DECISION:
Reasons for orders made on 29 April 2005 granting leave to appeal and dismissing the appeal.

CATCHWORDS:
SENTENCING - plea of guilty to offence of being a trustee fraudulently disposing of property contrary to s.172 Crimes Act 1900 - error in having additional regard to Applicant's abuse of a position of trust as an aggravating factor under s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999 - no error in declining to find "special circumstances" - sentence not manifestly excessive - no other sentence was warranted in law and should have been passed for purposes of s.6(3) Criminal Appeal Act 1912.

LEGISLATION CITED:

Crimes Act 1900
Property Stock and Business Agents Act 1941
Service and Execution of Process Act 1992 (Cth)
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2000
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Sentencing Act 1989

CASES CITED:
R v Shore (1992) 66 A Crim R 37
R v Wickham [2004] NSWCCA 193
R v Tadrosse [2005] NSWCCA 145
R v Johnson [2005] NSWCCA 186
R v Way (2004) 60 NSWLR 168
R v Pantano (1990) 49 A Crim R 328
R v Woodman [2001] NSWCCA 310
R v El-Rashid CCA(NSW), 7 April 1995, BC9504681
R v Chaloner (1990) 49 A Crim R 370
R v Hawkins (1989) 45 A Crim R 430
R v Simpson (2001) 53 NSWLR 704
R v Fidow [2004] NSWCCA 172
R v Novakovic [2004] NSWCCA 437
R v Hawker [2001] NSWCCA 148
R v Swadling [2004] NSWCCA 421
R v MJR (2002) 54 NSWLR 368
R v Hampton (1998) 44 NSWLR 729
R v Simpson (2001) 53 NSWLR 704

PARTIES:
Regina
Robert Cameron Martin

FILE NUMBER(S):
CCA 2004/2906

COUNSEL:
Mr M Pickin (Appellant)
Mr W Dawe QC (Respondent)

SOLICITORS:
Hardin Law (Appellant)
Mr S Kavanagh (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/31/0220

LOWER COURT JUDICIAL OFFICER:
His Honour Judge Armitage QC

2004/2906

HUNT AJA
HULME J
JOHNSON J
20 May 2005

REGINA v ROBERT CAMERON MARTIN

Judgment

1 HUNT AJA: I agree with Johnson J.

2 HULME J: I agree with Johnson J.

3 JOHNSON J: At the conclusion of the hearing of this application on 29 April 2005, the Court granted leave to appeal, but dismissed the appeal with reasons to be delivered at a later time. These are my reasons for joining in those orders.

4 The Applicant sought leave to appeal against sentence imposed by his Honour Judge Armitage QC at the Gosford District Court on 13 August 2004 upon one count of being a trustee fraudulently disposing of property contrary to s.172 Crimes Act 1900. The maximum penalty for such an offence is imprisonment for 10 years.

5 The Applicant pleaded guilty to a charge that, between 10 June 1992 and 31 March…

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 [2005] NSWCCA 190
Case: [2005] NSWCCA 190
Decision Date: 20 May 2005

CaseChat Overview and Summary

In the case of R v Martin, the appellant was convicted of being a trustee who fraudulently disposed of property, contrary to section 172 of the Crimes Act 1900. The court was tasked with reviewing the sentence imposed on the appellant, considering whether the sentencing judge erred in his approach to the case. Specifically, the appellant argued that the judge had improperly considered the abuse of a position of trust as an aggravating factor under section 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. The appellant also contended that the sentence was manifestly excessive and that the court should have found "special circumstances" that warranted a reduced sentence.

The court first examined whether the sentencing judge erred in taking into account the appellant's abuse of a position of trust as an aggravating factor. It was determined that while the judge did consider this factor, it was not the sole reason for the sentence imposed. The court found that the judge had a broad discretion in considering relevant aggravating factors and did not err in his approach. Additionally, the court considered whether the sentence was manifestly excessive and found that it was not. The court found that the sentence was proportionate to the seriousness of the offence and the appellant's role in it. The court also rejected the appellant's claim that "special circumstances" existed that warranted a reduced sentence, finding that no such circumstances were present.

In conclusion, the court found no error in the sentencing judge's approach and upheld the sentence imposed. The appeal was dismissed, and the original sentence stood. The court found that the sentence was appropriate and did not constitute an error in law. The court did not find any basis to reduce the sentence or to consider "special circumstances."

Orders